District Court of Zeeland-West-Brabant, 13 May 2026 – ECLI:NL:RBZWB:2026:5158

An employer in the offshore industry discovers that three departed employees set up a competing business while still employed. They took confidential documents with them, copied them one-to-one into tenders for potential clients, and presented themselves at a trade fair as a fully-fledged player in the market. On 13 May 2026, the subdistrict court of the District Court of Zeeland-West-Brabant ordered them to pay fines totalling €1,025,000, moderated down from potential amounts running into the millions. A ruling with lessons for every employer wishing to protect competitively sensitive information — and for every employee considering striking out on their own.

The facts in brief

The employer in this case operates in the offshore energy sector, in particular the laying of subsea cables for wind farms. It is a highly specialised market, with only a handful of players worldwide and cable-laying vessels that cannot be used for any other purpose. The company owned one cable-laying vessel and had acquired a second in 2022, partly in view of the growing American market.

The three defendants — a project manager, a tender engineer and a tender coordinator — all had an employment contract containing a non-compete clause, an ancillary-activities clause, a confidentiality clause, a company-property clause and a penalty clause of €25,000 per breach plus €2,500 for each day the breach continued.

The project manager was employed until 1 October 2023; the tender engineer left on 1 August 2022; the tender coordinator on 1 August 2023. By virtue of their roles, they all had access to commercially and technically sensitive information: the pricing structure of tenders, working procedures, investment plans and project documentation.

What did they do?

As early as 2021 — well before their departure — the project manager and the tender engineer held fortnightly Teams meetings about their new business. In April 2022 they incorporated it in Delaware. They approached ship designers using their business email addresses at the employer, invited the employer’s relations to meetings — at the employer’s expense — and contacted investors while presenting themselves as representatives of their then employer.

Shortly before his departure, the tender engineer sent his colleague the following chat message: “In preparation of leaving [employer] in the coming months, you may want to (carefully) take some documentation that may be useful for us. Things like method statements and procedures — would be a good one for now.” The project manager replied: “Already on it.”

The project manager then downloaded numerous confidential documents to his personal Dropbox, including the employer’s complete investment plan for the new cable-laying vessel — a document containing technical specifications, market analyses and financial details. A folder named “[employer] sourced” was also found in the Dropbox.

The tender coordinator was hired by her by-then-departed colleagues to submit a tender on behalf of the new business to an operator — the very tender she was at that moment working on for her employer. After the fact, the tender engineer wrote to his stakeholders: “A great team effort, though a special thanks goes to [tender coordinator] for her hard work to get this thing across the line — she helped us get from absolutely zero documentation to a compliant and high quality IAC offer.”

One day after the end of his employment, the project manager appeared on behalf of the new business at an offshore trade fair in the United States.

The forensic investigation

The employer engaged a digital forensic investigation firm. That firm’s conclusion left nothing to the imagination: the investigation yielded “a very large quantity of digital traces relating to activities concerning the preparation and start-up of a competing business.” The new business had copied passages from the employer’s documents literally, one-to-one, into its own tender offers. It was also demonstrated that the employer’s documents had been used as a reference when drawing up prices.

The subdistrict court’s ruling

Is the new business a competitor?

The first question was whether there was any competition at all. The former employees argued there was not: their new company was merely an idea, with no staff or paying clients, and was moreover aimed at the American market, which would be closed to foreign cable layers under the Jones Act.

The subdistrict court rejected this defence. Cable laying is in fact exempt from the Jones Act, so foreign cable-laying vessels are permitted to operate freely in American waters. Moreover, the new business had registered for the same tenders as the employer — including outside the United States. The fact that no vessel was yet in service did not mean there was no competition. The new business was fishing in the same pond.

Forfeiture of rights?

The former employees argued that the employer had waited too long to bring claims. The subdistrict court emphasised that forfeiture of rights sets a high bar: the mere passage of time is insufficient. As early as 6 February 2024, the employer had addressed the two men in writing and expressly indicated that it would enforce the contractual clauses — including the penalty clause. That suffices. There was no legitimate expectation that the employer would no longer assert its claim.

Which clauses were breached?

In respect of the project manager and the tender engineer, the subdistrict court held that they had breached the non-compete clause, the ancillary-activities clause, the confidentiality clause and the company-property clause — as well as the Code of Ethics. The breaches of the non-compete and ancillary-activities clauses were treated as a single breach, because a reasonable interpretation entails that the same conduct should not be penalised twice.

The subdistrict court established that the breaches of the non-compete clause began on 1 June 2023, the moment the new business’s website went online. From that point on, this was no longer mere preparation but economic business activity.

In respect of the tender coordinator, it was established that she had on two occasions copied her employer’s business documents almost literally into materials she drew up for the new business, including a Local Content Plan and a HIRA document (Hazard Identification & Risk Assessment).

The fines — and their moderation

On the basis of the contractual penalty clauses, the theoretically forfeited fines amounted to millions of euros per defendant. But the subdistrict court moderated those amounts considerably, in particular because the employer had not substantiated its loss concretely (apart from an amount of €55,438), the fines were not capped in the employment contract, and the fines were out of proportion to the salaries of those involved.

On the other hand: the breaches were committed knowingly and deliberately, systematically and over a period of years, using confidential materials for the defendants’ own commercial gain. The former employees had also failed to be transparent about their income via the new business.

The result: the project manager and the tender engineer were each ordered to pay €500,000. The tender coordinator had to pay €25,000.

Liability of the new business itself

The new business was itself held liable for the loss the employer had suffered as a result of the wrongful benefit, to be assessed in separate follow-on proceedings. As a legal entity it had knowledge of the breaches of contract — after all, it had been founded and managed by the former employees concerned — and had derived concrete advantage from them. That constitutes a wrongful act towards the former employer.

Prohibitions and orders

In addition to the fines, the subdistrict court imposed a prohibition on any further use of the confidential information, and an order to destroy all the documents concerned. It was also prohibited to take part in the specific tenders for which the new business had already registered. The court refused the broader prohibition on registering for any comparable tenders until 2032 — in effect a shutdown of the business — as too far-reaching a restriction of entrepreneurial freedom.

The rectification sought on the website and in letters to clients was likewise refused: now that a prohibition on the tenders had already been imposed, it was not apparent what interest the employer still had in it.

What are the lessons?

For employers, this ruling illustrates that a well-drafted penalty clause, combined with a confidentiality clause and a company-property clause, provides a solid legal basis — but that timely enforcement and documentation of loss are crucial. The court moderated the fines considerably here, partly because the employer could not establish the concrete extent of its loss. Anyone wishing to bring follow-on damages proceedings would do well to identify and substantiate that loss as early as possible.

Forensic investigation of returned equipment proved decisive in this case. Chat messages, Dropbox logs and meeting minutes turned out to be worth their weight in gold. Employers with access to company laptops and cloud environments can have a targeted digital analysis carried out after an employee’s departure if they have a reasonable suspicion of irregularities.

For employees considering striking out on their own: the fact that, in the eyes of an HR officer, a non-compete clause might be “just a formality” carries no weight in court if it is not recorded in writing. And anyone who carries out preparatory acts while still employed — certainly using company documents, business email addresses or business relations — risks not only liability towards the employer but also substantial fines.

The new business itself learned that benefiting from the breaches of contract by its founders can drag it into separate damages proceedings, even if it was not itself a party to the employment contracts.

Frequently asked questions

The non-compete clause

What is a non-compete clause and when is it valid?

A non-compete clause is an agreement under which an employee undertakes not to work for a competitor or start a competing business of their own after the end of their employment. A number of conditions apply to its validity: the clause must be agreed in writing and, in the case of fixed-term contracts, the employer must also state compelling business or operational interests. A clause that also covers the period during employment is not a non-compete clause within the meaning of Article 7:653 of the Dutch Civil Code, but a disguised ancillary-activities clause.

How long may a non-compete clause last?

The law sets no fixed maximum term, but courts assess whether the duration is reasonable in relation to the role, the market and the employer’s interests. In practice, a term of one year is generally considered acceptable for senior or commercially sensitive roles. Longer terms are regularly annulled in whole or in part.

Does a non-compete clause still apply if an HR officer said it was ‘just a formality’?

No, not if that statement was not confirmed in writing. In the ruling of 13 May 2026, the former employees raised precisely this defence: an HR officer was alleged to have said that the clause would not be enforced. The subdistrict court rejected that defence for lack of any written substantiation. An oral assurance carries no legal weight in cases like this.

May an employer hold some employees to the non-compete clause but not others?

Yes. It is for the employer to decide on a case-by-case basis whether enforcement is justified, depending on the role, the nature of the work and the departing employee’s new place of work. The fact that colleagues were not held to the clause in the past gives an employee no right to equal treatment.

Can I, as an employee, go to court to have the non-compete clause suspended or annulled?

Yes. An employee can ask the court to annul the clause in whole or in part if it places them at an unfair disadvantage in relation to the employer’s interest to be protected. Interim relief proceedings to obtain a suspension are also possible. It is wise to do this before starting the new role or business, not afterwards.

The ancillary-activities clause

What is an ancillary-activities clause and may an employer simply impose one?

An ancillary-activities clause prohibits the employee from working for third parties or running their own business alongside their employment. Since the introduction of Article 7:653a of the Dutch Civil Code, an employer may no longer apply a general prohibition on ancillary activities unless it has an objective justification for doing so. Protecting confidential business information, preventing conflicts of interest and countering competing activities can constitute such a justification.

From what moment does setting up a competing business breach the ancillary-activities clause?

Purely preparatory acts — such as registering a company or exploring an idea — are in principle not yet a breach. In the ruling of 13 May 2026, the subdistrict court set the line at the new business’s website going online, because from that moment the business could be regarded as economically active. Anyone who, while still employed, begins approaching clients, submitting tenders or using company documents for the new business, however, crosses that line far earlier.

The confidentiality clause and company property

What information falls under a confidentiality clause?

That depends on how the clause is worded. Broadly worded clauses — as in this case, which also referred to non-written information, work processes, prices and client relationships — cover virtually everything the employee obtained in the course of their role. Whether the information also qualifies as a “trade secret” within the meaning of the Trade Secrets Protection Act (Wbb) is not even required for the fine: the clause itself is the basis.

As an employee, may I take documents I created myself when I leave?

No, in principle not. Documents an employee created or received in the course of their employment remain the employer’s property. The company-property clause requires the employee to return them on departure, even without the employer expressly asking for them. Deliberately copying files to personal cloud storage — even “by accident” — quickly amounts to a breach.

What are the consequences if I use company documents for my new employer or business?

In addition to a fine under the penalty clause, the employer can seek a prohibition on further use and an order to destroy the documents. If the new employer or business is aware of the breach of contract and benefits from it, it too can be held liable for the loss — as happened with the new business in the ruling of 13 May 2026.

Fines and damages

How high can a fine for breach of a non-compete clause be?

That depends on the penalty clause in the employment contract. In the case discussed here, the fine was €25,000 per breach plus €2,500 for each day the breach continued, with no maximum. The theoretically forfeited amounts ran up to several million euros per person. The subdistrict court ultimately moderated the fines to €500,000 per principal offender and €25,000 for the less involved third party.

Can the court moderate a fine?

Yes. Under Article 6:94 of the Dutch Civil Code, the court can moderate a fine if fairness manifestly so requires and applying the clause would lead to an excessive and unacceptable result. In doing so, the court looks, among other things, at the relationship between the fine and the actual loss, the nature of the agreement and the circumstances in which the clause was invoked. An employer that has not substantiated its loss concretely runs the risk of the court moderating the fine substantially.

Can an employer claim damages in addition to fines?

Yes. The penalty clause generally operates alongside or instead of a claim for damages; the employer can choose. In the ruling of 13 May 2026, the new business was ordered to pay damages to be assessed in follow-on proceedings, while the former employees also had to pay an advance on investigation costs and legal costs of over €55,000.

Forfeiture of rights and the timing of enforcement

Can an employer forfeit its rights by waiting too long to enforce?

In theory yes, but the bar is high. The mere passage of time is insufficient. There must be special circumstances that gave the employee a legitimate expectation that the employer would no longer assert its claim, or that unreasonably prejudice the employee’s position. In practice, a timely written notice — even if the proceedings are only started later — suffices to prevent forfeiture of rights.

Unlawful competition

When is competition unlawful after the non-compete clause has expired?

Once the non-compete clause has expired, a former employee is in principle free to compete with their former employer. Even so, there can still be unlawful competition where the so-called Boogaard/Vesta criterion is met: there must be systematic and substantial erosion of the former employer’s sustainable business goodwill, using means obtained in confidence. In the ruling of 13 May 2026, this was not accepted, because the employer had insufficiently substantiated that its business goodwill had actually been substantially affected.

Practical advice

What should I do as an employer if I suspect a departed employee is breaching the non-compete clause?

Act quickly and in writing. Send a notice letter pointing out the employee’s obligations and stating that you will enforce the clauses — including the penalty clause. If necessary, have a digital forensic investigation carried out on returned equipment. Document the loss as concretely as possible, because a court that moderates the fines does so partly on the basis of the absence of concrete substantiation of loss. Consider a prejudgment seizure of evidence if you suspect that relevant materials are held by the other party.

What should I do as an employee before going to work for a competitor or starting out on my own?

Read your employment contract carefully. Check whether there is a non-compete clause, how long it lasts and what its geographical and substantive scope is. Do not delete any files and do not take any documents with you when you leave. Do not start any work for the new employer or business while the clause is in force without legal advice. If you believe the clause is unreasonably onerous, ask the court to annul or suspend it — before you fall into breach.

Do you have questions about protecting trade secrets, the validity of a non-compete clause or its enforcement? The employment-law specialists at Law & More will be glad to advise you.