Strict requirements for "customer protection clauses" between company and shareholders

11 Januar 2016

The Federal Supreme Court (BGH) has decided with judgement of 20.01.2015 (Az. II ZR 369/13) that so-called customer protection clauses, which are agreed between a GmbH and one of its partners upon his withdrawal from the company, are immoral according to § 138 BGB and therefore null and void, if they exceed the necessary extent in temporal regard. According to the Federal Court of Justice, this usually amounts to a maximum of two years.

In the underlying case, the parties only had a customer protection clause for named customers in a dispute agreement to restrict post-contractual activity, but this was agreed for 5 years. In the opinion of the BGH, however, this prohibition went beyond what was necessary in order to protect the contractual partner from an unfair exploitation of the success of his work by the other contractual partner. The case-law on post-contractual non-compete clauses also applies to clauses which are only agreed on the occasion of the termination of a relationship under company law.

The complete judgment is available here.