Konkurrenceklausuler: Begrænsende eller nødvendige?

Regitze Larsen

Student thesis: Master thesis

Abstract

This thesis is about the usability of competition clauses (Hereafter CC). In Danish law there is no prohibition of CC and in fact such clauses are often used by employers in Denmark and also often enforced. Danish employers and companies enjoy protection against unauthorized disclosure of information by a Danish law called “markedsføringsloven”. Within this it is illegal for former employees to bring the protected information to another competitor in a malicious purpose. A general employee is protected by the Danish law “aftaleloven”, which give regulations about a contract’s unreasonableness towards the weakest party – the employee. Concerning CC another law is the Danish “funktionærlov”, which protects employees who have a job in which they are highly trusted and therefore are likely to have a CC in their contract. There can be a problem about the workers mobility because of the restrictions a CC provides. In this it is questioned whether the employers’ interests within the legislation seem to be observed more than the consequences for the employee and the regional economy. In European law the treaty and other legal principles protect the freedom of workers mobility; especially jurisprudence shows that workers mobility is very important within the European Union. A hypothetical question to the ECJ, the European Court of Justice, analyzing the courts arguments in a former case, the Bosman–case, will show how the ECJ possibly will view CC. The juridical analysis and discussion is not enough to judge the problem about CC. An economic analysis is needed to determine whether it can be said that a CC is efficient or not. Therefore it is analyzed how such a clause will lead the parties to invest ex ante. These conclusions will demonstrate the effects of a CC and show how the parties examine it. Further, it is studied why employees want the engage in a CC when it is definite, that the clause can bring implications for the employee’s job situation among others, after the relationship ends. It is also empirically stated that a CC has consequences for the regional economy, therefore it will be analyzed whether the negative effects outweighs the positive or the opposite. The analysis is helpful if the Danish politicians are about to make any changes in this area.

EducationsMSc in Commercial Law, (Graduate Programme) Final Thesis
LanguageDanish
Publication date2012
Number of pages89