It is not uncommon for employees, after leaving the company, either to set up a competitor themselves or to work for a competitor and to contact the former employer’s clients in order to lure them to the new company.
The employer can protect himself against such acts by agreeing to a post-contractual non-competition clause. However, this is only legally effective if the employee is guaranteed a compensation payment by employment contract. Since this can be very high depending on the income, many employment contracts do not contain a corresponding clause.
The question then often arises as to whether appropriate abduction treatments by the former employee are anticompetitive. The former employer and current competitor wants to stop the actions that employees use to the limit of their permitted contacts.
Principle of freedom of competition
The case law assesses the “courtship of customers” according to 4 no. 10 UWG. After that acts unfairly, who obstructs a competitor purposefully. This applies in general, but also in the event that the acquirer is a former employee of the competitor. The case law is always based on the principle of freedom from competition.
Although the customer base is usually a significant, often even the only economic value of a company, but it is not a protected property. There is no grandfathering for the customer base of a company (BGH GRUR 2002, 548 –Car reimbursement).
According to the case law, the poaching of customers belongs to free competition, even if this happens consciously and on schedule (BGH GRUR 1986, 547 –Flyer Advertising). The resulting impairment of the former employer must be accepted. It is also permissible to make a phone call from a departed employee of a company to his customer in order to inform him of his departure and of his activity for a new company. The BGH has ruled in a recent ruling (BGH GRUR 2010, 939 –Telephone advertising after company change).
Special circumstances that justify an unfairness
The solicitation becomes unfair only when additional, special circumstances are added. This is the case, for example, if the acquirer lures the customer unfairly by eliminating the “rationality of his resolution” (BGH GRUR 2001, 752 – p.opening Advertising).
If the customer has to opt for an intransparent offer very quickly, this can be unfair. Furthermore, special circumstances may exist if the acquirer misleads the customer to breach the contract. If the acquirer is a former employee of the competitor, he knows in case of doubt the contractual relationship of the customer with the competitor and can specifically work towards a breach of contract.
The same applies if the acquirer lowers the competitor, ie the former employer at the customer. Special circumstances also exist if the acquirer exploits foreign trade secrets. However, the use of customer addresses that have remained in the customer’s memory does not justify any unfairness (BGH WRP 1999, 912customer addresses).
Unfairness due to misleading information
Further special circumstances may exist if the acquirer causes the customer to mislead the information to terminate the business relationship with the competitor. In this case, there is not only a targeted disability according to 4 no. 10 UWG, but also a misleading and thus according to 5 Abs. 1 UWG unfair business act.
In the case of solicitation by former employees misleading information comes into consideration here, which gives the customer the impression that the acquirer is (initially still) in contact with the customer as an employee of the competitor. In this case, according to 5a UWG also misleading by omission may be unfair, if the acquirer does not inform the customer, in which a mistake was caused, about the actual circumstances.
Incorrectness by the way of contacting
Irrespective of the question whether the courtship of customers is unfair, an unfairness can also result from the way in which they are contacted. The former employee may, if he lawfully wants to woo the customers of the competitor, not harass the customers unreasonably. When an unreasonable harassment exists, determined according to 7 paragraph 1 and 2 UWG.
The preconditions for an inadmissibility of the advertising by e-mail are regulated in 7 Abs. 2 Nr. 3 UWG, exceptions in 7 Abs. 3 UWG. An advertisement with a telephone call to a consumer is unreasonable, if this has given no express consent, 7 Abs. 2 Nr. 2 UWG.
Compared with other market participants, ie, for example, business customers, advertising by a phone call is unreasonable, if there is no presumed consent. In one case, however, the BGH decided that there was no unreasonable harassment by a former employee calling customers for the purpose of solicitation. The acquirer may at least accept a presumed consent of the customers, because they may have a considerable interest in the useful information (BGH GRUR 2010, 939 –Telephone advertising after company change).
In short, for urgent readers
If there is no post-contractual non-competition clause for the employee, the latter may in principle solicit customers of the former employer after leaving the company.
It is only through further, special circumstances that the solicitation becomes an unfair impediment to the competitor in accordance with 4 no. 10 UWG. If the former employee makes false statements to the customer, there may also be a misleading business action in accordance with 5 UWG. Last but not least, the way in which contacts are contacted can be remarkable.
Especially in cases where no anti-competitive nature of the solicitation can be determined, the dispute shifted to this level and the question of whether in the Abwerbehandlung an unreasonable harassment in accordance with 7 para. 1 and 2 UWG can be seen. In all cases the verifiability of the special circumstances, which justify the unfairness, is of crucial importance.
(The post first appeared in November 2013 and has been kept up to date since. The last update was in May 2019.)
Post picture: Robinraj Premchand / Pixabay
Axel Dreyer has been working at the law firm Schrmann Rosenthal Dreyer since 2009 and advises companies primarily in the field of intellectual property law, in particular in trademark and competition law as well as patent and design law. In addition to the contract design, a focus is on the representation of companies in processes in these areas.
Mr. Dreyer has successfully conducted a variety of procedures, including important and published decisions of the Federal Court of Justice and the European Court of Justice. Another focus of Mr. Dreyer is IT law.
The law firm website SRD Rechtsanwaelteverscheine regularly publishes articles on legal issues from the digital spectrum of topics.