Non-solicitation and relationship clause: when is a collective move a breach?

A collective move to a competitor does not in itself breach a staff non-solicitation clause, but a single commercial contact with a former client can breach a relationship clause. That follows from a judgment of the subdistrict court (kantonrechter) in Amsterdam of 4 August 2026 (ECLI:NL:RBAMS:2026:8591). Fusion Trade Netherlands B.V. claimed €530,000 in penalties from a former employee; the court awarded €25,000, for breach of the relationship clause only.

What happened in this case?

The employee joined Fusion Trade, a trader in electronic components, on 31 January 2011 and worked as a Sales Account Executive on an indefinite-term contract from 1 August 2012. His contract contained a confidentiality clause, a staff non-solicitation clause and a relationship clause, each carrying a penalty of €25,000 per breach plus €5,000 for every day the breach continued. Fusion Trade had deliberately left out a non-compete clause; what such a clause covers is explained in our guide to the non-competition clause under Dutch law.

A separate confidentiality and non-solicitation agreement of 23 August 2018 with Fusion Trade Inc. carried no penalty clause of its own, so the court assessed the claim against the employment contract alone. The employee resigned on 20 February 2024, effective 31 March 2024, and joined Chip 1 Exchange NL B.V. around 1 April 2024. Eight other employees moved across in the same period, after a WhatsApp group had been set up whose messages disappeared after 24 hours.

Fusion Trade claimed €150,000 for staff solicitation, €230,000 for breach of the relationship clause and €150,000 for breach of confidentiality. The court awarded €25,000 plus statutory interest from 29 May 2026, dismissed the remaining penalty claims and the extrajudicial collection costs, and ordered Fusion Trade to pay €3,026 in legal costs.

What counts as solicitation of staff?

An active step to persuade a colleague to resign is required; a joint move by itself is not enough. The clause prohibited the employee, for one year after the end of employment, from approaching or engaging Fusion Trade staff. How such a clause is typically drafted is covered in our article on the non-solicitation clause.

The court called the WhatsApp group dubious, but its content could not be established: messages were deleted automatically and the group itself had been removed. Several employees were already friends, were unhappy with how the department was run and wanted to keep working with their former manager. Without a non-compete clause, nothing stopped them from joining Chip 1, and it could not be established who had solicited whom.

How far does a relationship clause reach?

The relationship clause prohibited the employee, for one year, from soliciting Fusion Trade’s clients and from entering into commercial relationships with them in its core business. Interpreting the clause under the Haviltex standard (ECLI:NL:HR:1981:AG4158), the court reached three conclusions:

• Not every contact is prohibited. The clause forbade soliciting a client or entering into a commercial relationship, whatever the amounts involved, not contact as such.
• Who made first contact is not decisive. If a commercial relationship follows from contact initiated by the client, the clause is still breached.
• With a large portfolio, actual awareness matters. Fusion Trade had around a thousand relationships in the Netherlands. If the employee did not know, and could not reasonably have known, that a party was a client, contact with that party is not a breach.

Why did a single email lead to a €25,000 penalty?

On 1 August 2024, an employee of the client SQP asked the former employee directly whether certain products would be delivered the next day, and he replied on 2 August 2024. His defence that he had merely responded to an internally forwarded email failed: SQP had addressed him directly, SQP had placed an order and he was involved in that commercial relationship.

The €80,000 in daily penalties claimed from 17 July to 2 August 2024 was dismissed, because the email of 17 July came from a colleague. For a daily penalty to run, the employer must substantiate when a breach began and how long it lasted. Claims about three other clients, based on oral statements the employee disputed, failed for lack of evidence.

Does a breach of the relationship clause also breach confidentiality?

No. The court held these are two separate obligations: a breach of confidentiality must be shown independently, by proving that confidential information was actually used, copied or passed on. A confidentiality clause protects genuine trade secrets, not the general knowledge an employee builds up. This lines up with Article 1 of the Trade Secrets Protection Act (Wet bescherming bedrijfsgeheimen): information must be secret, have commercial value because it is secret, and be protected by reasonable measures.

A custom lead list built in LinkedIn Sales Navigator on 18 March 2024 was not a breach either, because that information is available to any licence holder. Data from a commercial database can still be confidential, depending on its content and what the parties agreed, as we explain in our guide to the non-disclosure agreement.

Why was the €25,000 penalty not reduced?

Under Article 6:94 of the Dutch Civil Code (BW), a court may reduce a contractual penalty only where enforcing it would produce a plainly excessive and unacceptable result. That standard follows from Intrahof/Bart Smit (Supreme Court, 27 April 2007, ECLI:NL:HR:2007:AZ6638) and was confirmed in Turan/Easystaff (16 February 2018, ECLI:NL:HR:2018:207). The court weighs the actual loss against the penalty, the nature of the agreement, the purpose of the clause and the circumstances.

Here, the court treated the breach as serious, because a relationship clause protects goodwill, and noted that the employee had received USD 6,705,000 in bonuses and commission between January 2022 and June 2023. Where an employee’s position is weaker and the breach is isolated, courts do reduce penalties, as in ECLI:NL:RBLIM:2025:3973 (€48,500 reduced to €25,000) and ECLI:NL:GHSHE:2014:6 (€12,500 reduced to €5,000). Our overview of a case with fines totalling €1.025 million on three former employees shows how differently this can end once trade secrets are taken.

What requirements apply to a penalty clause in an employment contract?

Under Article 7:650 BW, a penalty clause must be agreed in writing, and both the obligation it enforces and the amount must be described precisely. Only for an employee earning more than the statutory minimum wage can the parties depart in writing from the further requirements, such as where the penalty goes. Article 7:651 BW adds that an employer cannot claim both a penalty and damages for the same act; see our article on the penalty clause in an employment contract.

The Supreme Court treats a relationship clause as a non-compete clause under Article 7:653 BW (3 March 2017, ECLI:NL:HR:2017:364). It must therefore be agreed in writing with an adult employee, and in a fixed-term contract it is only valid with a written statement of a substantial business interest.

What should you check as an employer?

The judgment shows where enforcement fails in practice. Check these points:

• If you want to stop employees joining a competitor, include a non-compete clause; other clauses cannot replace it.
• Keep an up-to-date, identifiable list of the clients covered by the relationship clause.
• Record for every client contact who took the initiative, what was discussed and which transaction followed.
• Substantiate a daily penalty day by day; a single act does not justify a continuing penalty.
• Specify which information is confidential and take reasonable protective measures under the Trade Secrets Protection Act.
• Check the penalty clause against Articles 7:650 and 7:653 BW.

What should you check as an employee?

Without a non-compete clause, you are free to join a competitor, even with several colleagues at once. Check these points:

• Does your contract contain a non-compete clause under Article 7:653 BW, and was it validly agreed in writing?
• Are you actively persuading colleagues to move, or simply moving at the same time?
• Will a reply to a former client lead to an order in which you are involved?
• Are you taking files, client lists or other data with you?
• Is the penalty amount and the daily penalty set out precisely in writing (Article 7:650 BW)?

What can we do for you with non-solicitation and relationship clauses?

Our employment lawyers act for employers and employees in disputes about post-employment clauses:

• We review your non-compete, non-solicitation, relationship and confidentiality clauses.
• We assess whether a breach can be proven and which penalty can realistically be claimed.
• We draft the demand letter or the response to a penalty claim.
• We argue for or against reduction of the penalty under Article 6:94 BW before the subdistrict court.
• We redraft clauses so they meet Articles 7:650 and 7:653 BW.

Summary

• A joint departure by several colleagues is not, by itself, staff solicitation; an active attempt to persuade someone to resign is required.
• A relationship clause can be breached by a single commercial contact, even where the client made the first approach.
• With a large client portfolio, an employee is only in breach for clients he knew, or should have known, were covered.
• Breach of a relationship clause does not automatically mean breach of confidentiality.
• A penalty far above the actual loss is not reduced for that reason alone (Article 6:94 BW).

Frequently asked questions