A collective move to a competitor does not in itself breach a staff non-solicitation clause. That follows from the judgment of the subdistrict court in Amsterdam of 4 August 2026 (ECLI:NL:RBAMS:2026:8591). Fusion Trade Netherlands B.V. claimed € 150,000 in penalties from a former employee for staff solicitation, € 230,000 for breach of the relationship clause and € 150,000 for breach of confidentiality. The court awarded a single penalty: € 25,000 for breach of the relationship clause. The remainder was dismissed.
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 employment contract contained a confidentiality clause, a staff non-solicitation clause and a relationship clause, with a penalty of € 25,000 per breach plus € 5,000 for each day the breach continued. There was deliberately no non-compete clause: Fusion Trade took the view that the other three clauses protected its interests sufficiently. What such a clause does and does not cover is set out in our guide to the non-competition clause under Dutch law.
In addition, on 23 August 2018 the employee and Fusion Trade Inc. entered into a separate Confidentiality and Non-Solicitation Agreement. The court did not need to decide whether Fusion Trade could enforce that agreement: it contained no penalty clause of its own, nor any provision applying the penalty clause from the employment contract by analogy. The penalty claim was therefore assessed solely against the employment contract.
The employee gave notice on 20 February 2024 with effect from 31 March 2024 and joined Chip 1 Exchange NL B.V. around 1 April 2024. Eight other former Fusion Trade employees moved across in the same period. Shortly after their manager announced his departure, a WhatsApp group had been created; its name was changed several times and messages disappeared automatically after 24 hours.
What counts as solicitation?
The non-solicitation clause prohibited the employee, for one year after the end of employment, from approaching or engaging staff of Fusion Trade or its affiliated companies. According to Fusion Trade, the employees had encouraged each other, partly through the WhatsApp group, to resign and join Chip 1. How such a clause is normally drafted and what it can realistically achieve is explained in our article on the non-solicitation clause.
The court did not accept that reasoning. Solicitation presupposes an active step, in which one person tries to persuade another to resign and take up employment elsewhere. That evidence was missing. The court called the group dubious, but the content of the messages could not be established: messages were deleted automatically and the participants had since deleted the group. The messages Fusion Trade did obtain showed no solicitation.
The context did not necessarily point to solicitation either. Part of the group were already friends, the employees stated that they were dissatisfied with how matters were run and wanted to continue working with their departed manager, and they were free to join Chip 1 because no non-compete clause applied. Even if there had been encouragement, it could not be established who had solicited whom. Joint action is not in itself an individual act of solicitation. The penalties claimed for solicitation were dismissed.
How far does the relationship clause reach?
The relationship clause prohibited the employee, for one year after the end of the employment contract, from soliciting clients of Fusion Trade and from entering into commercial relationships with those clients in respect of Fusion Trade’s core activities. It covered parties that were clients on the termination date or had been clients in the preceding year. The court interpreted the clause under the Haviltex standard and reached three conclusions.
Not every contact is prohibited
The clause does not say that all contact with a (former) client is forbidden. What is prohibited is soliciting that client and entering into a commercial relationship, regardless of the amounts involved.
Who made first contact is not decisive
If the client makes contact, that does not rule out a breach. If solicitation or a commercial relationship follows, the clause is breached.
With a large portfolio, awareness matters
Fusion Trade had around a thousand relationships in the Netherlands and several thousand worldwide. An employee cannot be expected to know them all. If it is established that he did not know, and could not have known, that a party was a client, contact with that party is not a breach. With broadly drafted relationship clauses it is therefore sensible to record which relationships are covered. The validity requirements that apply before you ever get to that point are set out in our article on what is still reasonable in a non-compete clause in 2026.
Why did a single email lead to a € 25,000 penalty?
For the client SQP, the court found a breach proven. On 17 July 2024 someone else emailed SQP about a new order. On 1 August 2024 an SQP employee asked the employee and a colleague directly whether certain products would be delivered the following day. The employee replied on 2 August 2024.
His defence that he had merely responded to an internally forwarded email did not hold: SQP’s email was addressed to him directly, and he gave no adequate explanation for his own message. Because SQP had placed an order and the employee was involved in that business relationship, the relationship clause was breached. One penalty of € 25,000.
The € 80,000 in daily penalties claimed for the period from 17 July to 2 August 2024 was dismissed. It had not been shown that the employee had any contact with SQP on 17 July; that email came from someone else. For a daily penalty, the employer must therefore substantiate separately when the breach began and how long it continued.
Fusion Trade further argued that three other clients had stated orally that the employee had contacted them. The employee disputed this with reasons and no further substantiation was provided, so no breach could be established on that point either. For employers, the lesson is to record, for each client contact, who made the approach, when, with what message, what commercial step followed and what role the former employee played in it.
Does a breach of the relationship clause also breach confidentiality?
No. Fusion Trade argued that every breach of the relationship clause automatically breaches the confidentiality clause as well, because the employee knew client names, contacts and requirements. The court rejected this: these are two separate clauses, and neither states that breaching one entails breaching the other. A breach of confidentiality must be established independently, by showing that confidential or competitively sensitive information was used, copied or disclosed to third parties.
What does a confidentiality clause actually cover?
The clause protects genuine trade secrets, not the general professional knowledge and experience an employee acquires during his career. He remains free to use that knowledge after employment ends. This is consistent with article 1 of the Dutch Trade Secrets Protection Act (Wet bescherming bedrijfsgeheimen), which requires that information is secret, has commercial value because it is secret, and has been kept secret through reasonable measures.
The use of LinkedIn Sales Navigator was not a breach either. The employee had used it to create a custom lead list on 18 March 2024. The court called this questionable, but the information is accessible to any licence holder and is therefore not commercially sensitive information belonging to Fusion Trade. That does not mean data from a commercial database can never be confidential: what matters is the content, its accessibility, how it was collected and what the parties agreed. Anyone wanting watertight confidentiality must specify which information is covered, as we explain in our guide to the non-disclosure agreement.
Why was the penalty not reduced?
Under article 6:94 of the Dutch Civil Code, a court may reduce a contractual penalty only where fairness manifestly requires it, that is, where applying the clause would lead to a clearly excessive and therefore unacceptable result. The court weighs the relationship between the actual loss and the penalty, the nature of the agreement, the content and purpose of the clause and the circumstances in which it is invoked. The court referred to the leading Supreme Court judgment of 27 April 2007 (NJ 2007/262, Intrahof/Bart Smit).
No reduction followed. The penalty serves as an incentive to comply, so the fact that it exceeds the actual loss is not enough on its own. The breach was regarded as serious because the relationship clause protects the employer’s goodwill and client base. The court also took into account that between January 2022 and June 2023 the employee had received a total of USD 6,705,000 in bonuses and commission.
That outcome is not automatic. Where the employee’s financial position is weaker, the breach is isolated and no loss of turnover is demonstrated, lower courts do reduce penalties. Examples can be found at the District Court of Limburg (ECLI:NL:RBLIM:2025:3973) and the Court of Appeal in ’s-Hertogenbosch (ECLI:NL:GHSHE:2014:6). How differently this can end where a non-compete clause is in place and trade secrets are actually taken is shown by the case in which the court imposed fines totalling € 1.025 million on three former employees. The relationship between loss and penalty matters, but is never decisive on its own: all the circumstances of the case count.
What requirements apply to a penalty clause in an employment contract?
Article 6:91 of the Dutch Civil Code treats as a penalty clause any provision under which the debtor owes a sum of money in the event of a failure to perform, whether it serves as compensation or as an incentive. For employment contracts, the requirements of article 7:650 of the Dutch Civil Code apply in addition: the clause must be agreed in writing, and the rule to which the penalty relates and the amount must be stated precisely. That provision is mandatory law: only for employees earning more than the statutory minimum wage can the remaining requirements, including the destination and the amount of the penalty, be departed from in writing. The Supreme Court confirmed this in its judgment of 16 February 2018 (ECLI:NL:HR:2018:207, Turan/Easystaff): any departure must be agreed expressly and in writing. Article 7:651 adds that an employer cannot both impose a penalty and claim damages in respect of the same act. Our article on the penalty clause in an employment contract goes into this in more detail.
Finally, it is worth noting that the Supreme Court treats a relationship clause as a non-compete clause within the meaning of article 7:653 of the Dutch Civil Code (Supreme Court, 3 March 2017, ECLI:NL:HR:2017:364). The same formal requirements therefore apply: it must be agreed in writing with an employee of full age, and in a fixed-term contract it is valid only where there is a substantial business interest set out in writing. That did not arise here, because the contract was for an indefinite term.
What was the outcome of the proceedings?
The employee was ordered to pay € 25,000, plus statutory interest from 29 May 2026, the date on which Fusion Trade increased its claim and first claimed interest. The remaining penalty claims, totalling € 505,000, and the extrajudicial collection costs were dismissed. Fusion Trade was ordered to pay € 3,026 in legal costs. The judgment was declared provisionally enforceable.
What does this mean for employers?
The judgment translates into ten concrete points for drafting and enforcing these clauses.
| Topic | Practical lesson |
|---|---|
| Non-compete clause | Its absence cannot be repaired with a non-solicitation, relationship or confidentiality clause |
| Non-solicitation clause | Show per employee who approached whom and with what aim; a joint move does not prove this |
| Digital communication | Disappearing or deleted messages create evidential problems; arrange a lawful evidence strategy in good time |
| Relationship clause | Define which relationships are covered and keep an up-to-date, identifiable client list |
| Client contact | Record who took the initiative, what was discussed and which transaction followed |
| Confidentiality | State specifically which information is confidential and take demonstrably reasonable protective measures, as the Trade Secrets Protection Act requires |
| Publicly available information | Information available through a generally accessible platform is not automatically confidential |
| Daily penalty | Substantiate the duration of the breach day by day; a single act does not justify a continuing penalty |
| Cumulation | A breach of the relationship clause is not automatically a breach of confidentiality |
| Penalty clause | Check the writing requirement, description, destination and amount against article 7:650 DCC |
| Relationship clause and article 7:653 DCC | Treat the relationship clause as a non-compete clause: in writing, with an employee of full age, and for fixed-term contracts with a written substantial business interest |
What does this mean for employees?
Without a non-compete clause, you are free to join a competitor, including at the same time as several colleagues. A non-solicitation clause restricts this only once you actively try to persuade colleagues to move. The relationship clause is the one you run into in practice: replying to a message from a former client is not prohibited as such, but if business follows and you are involved in it, the penalty is incurred. Do not accept commercial instructions from your former employer’s clients without legal advice, do not take files or client data with you, and if in doubt have the wording of your clause reviewed.
Frequently asked questions
Can I move to a competitor together with colleagues?
Without a non-compete clause, yes. A joint move is not in itself evidence of solicitation. There may be a breach if you actively try to persuade a colleague to resign and join your new employer.
When do I breach a non-solicitation clause?
That depends on the wording. In this case an active step was required, in which one person tries to persuade another to resign and take up employment elsewhere, and it had to be clear per person who had approached whom.
Is all contact with a former client prohibited?
Not on the interpretation given in this case. What was prohibited was soliciting the client and entering into a commercial relationship, not contact as such.
Does it matter who made first contact?
No. Even if the client approaches you, what follows may amount to solicitation or to entering into a commercial relationship.
Does a relationship clause cover all my employer’s clients?
Not necessarily. With a very large client portfolio, an employee cannot be expected to know every relationship. If you did not know, and could not have known, that a party was a client, that is relevant to the assessment.
Is information from LinkedIn Sales Navigator always free to use?
No. In this case the information was accessible to any licence holder and therefore not a trade secret. That assessment depends on the nature and accessibility of the information and on what the parties agreed.
Can a penalty of € 25,000 be reduced?
Only where applying the penalty clause would produce a clearly excessive and unacceptable result. The mere fact that the penalty exceeds the loss is not enough.
What is the main takeaway?
The point of this judgment is not that a relationship clause outweighs a non-solicitation clause. It is that each clause must be interpreted and proven separately. A joint move is too little for a non-solicitation clause. One concrete commercial act is enough for a relationship clause, even where the client made the first approach. And for confidentiality, independent evidence is needed that confidential information was used or disclosed.
Do you have questions about a relationship clause, a non-solicitation clause, a confidentiality clause or a contractual penalty? Please feel free to contact the employment law attorneys at Law & More.
Author: Michelle Marjanovic, employment law attorney at Law & More
Source: District Court of Amsterdam (subdistrict court) 4 August 2026, ECLI:NL:RBAMS:2026:8591, case number 12121989 / CV EXPL 26-3003
