XIVth Meeting of European Labour Court Judges 4 September 2006 Cour de cassation Paris ____________________________________________________________

_______________ FRANCE

Non-competition clauses in labour contracts
National reporter: M. Michel Blatman Conseiller à de la Cour de cassation, Paris

1.

What clauses, if any, are in your country’s constitution relating to covenants not to compete in labour contracts? Are there clauses relating to the freedom of occupation; protection of property (if so, does this include intellectual property and trade secrets); freedom of contract, etc. If there are such clauses, how are they applied relating to covenants not to compete? Which, if any, of the EU Directives relating to this subject are applied in your country? R. The Constitution of the French republic does not contain any clause relating to covenants not to compete. But the French Déclaration des droits de l’Homme et du Citoyen (Declaration of rights of Man and of Citizen) of 1789 provides in its Article 4 that liberty consists in being free to do anything that does not harm other people, and its Article 17 that property is a sacred and inviolable right. A decree of 2 and 17 March 1791 also provided that any person would be free to do such business, or to practise such occupation, craft or job she saw fit to her. The Constitutional Council (Conseil Constitutionnel) held in 1982 (16 January) that the principle of freedom of commerce and industry is of constitutional value. In a more recent decision (Decision n° 2000-439 DC of 16 January 2001) the same Council stated that the law maker is allowed to bring to the freedom of undertaking limitations related to constitutional requirements or justified by the genereal interest, provided that there should not result disproportioned restraints regarding the aimed objective. The Council also recognized the freedom of contract as a principle of constitutional value: First, indirectly (Decision n° 98-401 DC of 10 June