With sentence no. 22247/21, the Supreme Court intervened again on the autonomy of the clauses of the non-competition agreement and the prohibition of customer transfers, going to settle a dispute between a well-known credit institution and one of its former managers.

The Stoats confirmed the decisum of the Court of Appeal of Milan, which, in accepting the demands made by the employer, had sentenced the outgoing former executive to pay the Bank the contractually agreed penalties for the violation of both the non-competition, as for the ban on customer transfers.

In fact, after arguing on the concrete validity of both contractual clauses, the legitimacy judges reaffirmed the now constant orientation by virtue of which the autonomous clause of the transfer ban is not attributable to the contractual non-competition agreement , as aimed at regulating a different obligation and therefore not subsumable in the abstract case referred to in art. 2125 of the civil code

In other words, the Cassation confirmed the principles established in the sentence on the merits, dispelling any doubts about the independence of the two clauses, finding their autonomy in the different normative source regulating the individual cases (art. 2125 of the civil code in the first case and art. 2958 no. 3 of the civil code in the second) and verifying that, in the case submitted to his judgement, their single violation had occurred through distinct conducts, for times and methods, although connected teleologically.

In particular, the judges had the opportunity to specify that the regulatory regime pursuant to art. 2125 of the civil code it cannot also be extended to the prohibition of transferring customers because the two clauses prohibit two different conducts: the first prohibits carrying out work activities in competition with the employer company, even at the end of the employment relationship; the second, by preventing the performance of deeds functional to the misdirection of customers – in most cases qualifying as acts of unfair competition – aims to protect the goodwill of the policyholder company and its own customer portfolio acquired over time.

In the present case, then, the autonomy of the two clauses was even strengthened by the application of the different term of effectiveness for one and for the other. Therefore, the Territorial Court, once the violation by the worker of both obligations underlying the two clauses had been ascertained, could only condemn the former manager to pay both contractually provided penalties, since there could be no illegitimate doubling between the two obligations assumed in the contract.

Mariaines Marangelli