a) Fundamentally, not only setting prohibitions, but also agreements between entrepreneurs, not to poach workers, judicially unenforceable lock agreements within the meaning of § 75f HGB.

b) Such solicitation but do not fall within the scope of § 75f HGB, if they are only ancillary provisions of the agreement and take account of special trust relationship between the parties or a special-protection conferred meagerness of the two sides.

c) A between two companies in terms of a joint distribution ver-agreed target non-solicitation shall in principle not exceed a period of two years following termination of cooperation.

JUDGMENT BGH I ZR 245/12 from 30. April 2014 – Abwerbeverbot

HGB § 75f; Civil Code § 339

BGH, Judgment of 30. April 2014 – I ZR 245/12 – OLG Hamburg
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The I. Civil Division of the Federal Court of the oral negotiation 30. April 2014 by the judges Prof. Dr. Büscher, Pokrant, Dr. Cook, Dr. Löffler and the judge Dr. Schwonke
hereby:
On appeal by the defendant, the judgment of the Higher Regional Court of Hamburg – 5. Civil Division of the 31. October 2012 the cost point and far removed, than has been recognized to the detriment of the defendant.
The appeal by the applicant against the decision of the District Court of Hamburg, Civil Chamber 7, from 29. June 2010 as a whole to-rejected.
The applicant shall bear the costs of the appeal.
By rights
Facts:
The parties active in the commercial vehicle business originally belonged to the same group of companies, to a third-party company in 2004 acquired the business interests of the defendant. To continue the joint distribution of their Fahrzeu-ge, included the spatial in close proximity to-
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area residents parties on 19. August 2005 a cooperation agreement. § Dessen 12 Abs. 1 is:
“Each party agrees, during and up to three years after termination of this Agreement any employee of the other party ERS advertise directly or indirectly. For each case, an infringement of the provision in the first sentence 1 pays the breaching party to the other party a penalty of two years' salary gross (including. Premiums, Royalties) of the employee concerned, the breach of the obligation pursuant to sentence 1 being recruited by the party concerned, wherein the calculation of the penalty, the gross annual salary of the employee is significantly, which he received in the year prior to the forfeiture penalty.”
The defendant terminated the cooperation agreement for 31. December 2006.
Im August 2009 declared two at the applicant employed sales staff regular termination of their employment contracts to 30. Sep-tember 2009 and decreased the 1. October 2009 employment with the defendant on.
The applicant has claimed, the then Managing Director of the defendant have the two employees caused by recruitment efforts staged to change their on-position relationships. She has by the defendant because of the Mess-kung of two penalties for the payment of 383.770,52 € nebst Zinsen far-longs.
The defendant argued, the contractual non-solicitation was suggested, so that the potentially forfeited penalties are not enforceable.
The district court dismissed the action. On appeal by the applicants-rin, the Appellate Court, the defendant except for a portion of the interest demanded
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accordance with the application sentenced. With its authorized by the Court of Appeal for revision-on, their rejection, the applicant seeks, the defendant seeks the How-productionof the action of repellent that judgment.
Reasons:
I. This Court has adopted, the defendant had forfeited each contractual penalties in the amount of two times the most recently paid annual gross salary for the poaching of the two employees of the applicant. To this end it has executed:
The plaintiff could enforce the penalties in court, as agreed between the parties, non-solicitation under the terms of § 75f HGB was not a barrier clause, within the meaning of this provision. Striven for through the provision protection of the worker against unreasonable penalties in the profes-chen progress not command their corresponding application on the disputed clause of the cooperation agreement of the parties. As vertragswid-engined solicitation within the meaning of the contractual agreement had not been any conduct of a contractor to look at, which in any way will therefore have the consequence, that an employee of a party founded a new working relationship with the other party. The agreement was merely means To Hide-hen, that at least one selective, was Initiativen acting on the workers with the aim required, Start-ver this to change his job to. Therefore, it does not preclude a change-willing workers free, at an employer, the subject to a non-solicitation, to apply themselves. The contractual non-solicitation was not in accordance with § 138 BGB immoral. The par-files had been received reciprocal obligations, in the interest of-
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the parties had located. A temporal shortening of the non-solicitation for a period of two years after termination of the cooperation agreement was not warranted.
According to the result of the second instance carried out Beweisaufnah-me stand firmly convinced the Court of Appeal, that the two-time former employee of the applicant had been the managing director of the defendant abgewor-ben. Against the amount of forfeited penalties the defendant did not raise any objections; for the adequacy speak otherwise, that the applicant is bound by the contractual penalties reinforced non-solicitation.
II. The actions against these attacks assessing the revision success. They lead to the cancellation of the judgment on appeal and the complete rejection of the appeal by the applicant against the decision of the Court Landge-.
1. The Court of Appeal erred in, that the plaintiff against the defendant because of the poaching of two employees under § 339 Sentence 2 BGB in connection with § 12 Sentence 1 the cooperation agreement of the par-parties is entitled to payment of contractual penalties. Although the enforceability of the claim for breach of the parties ver-agreed non-solicitation complies with § 75f set 2 HGB not a priori opposed, because the applicable solicitation provision per se on (to Section II 2) in the present constellation, the enforceability of the stand-in the speech claim does not preclude (to Section II 3). Nevertheless, the Verurtei-ment of the defendant can not be upheld by the Court of Appeal; the non-solicitation in question is on a period of two years after QUIT-
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to limit movement of the cooperation agreement and therefore no longer detects the vorlie-ing poaching (to Section II 4).
2. However, non-solicitation generally fall in the Anwendungsbe-rich § 75f of the German Commercial Code.
a) After this determination is made of an agreement, by which undertakes a principal against another principal, an action-mates, who is with this in service or been, to make or only under certain conditions be-, no action takes. The lack of court-Liche enforceability detected which also assumed the appellate court is contractual penalties, the securing of a under § 75f HGB fall-to serve agreement (vgl. BGH, Judgment of 13. October 1972 I ZR 88/71, BB 1973, 427; Judgment of 30. April 1974 VI ZR 153/72, NJW 1974, 1282). On-the rule is applicable not only to association agreements, but also on an agreement between individual employers (vgl. BGH, BB 1973, 427), as it stands presently at issue.
Without importance for the applicability of § 75f HGB is further, whether the two employees of the applicant clerks pursuant to § 59 HGB have been. According to the jurisprudence of the Federal Court and the Bundesar-beitsgerichts the scope of § 75f HGB fall all work-pants (vgl. BGH, NJW 1974, 1282, 1283; BAGE 22, 125, 134). This jurisprudence has the legislature in the 1. January 2003 entered into force provision of § 110 Sentence 2 Industrial Code reconstructed.
b) However controversial is the question, whether § 75f HGB not only the Klag-bility of setting prohibitions, but also of agreements between
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Excludes entrepreneurs, No workers of the contractor abzuwer-ben.
aa) According to one view HGB § 75f failed not only agreed between work-encoders setting prohibitions, but generally well-Abwerbever offered the enforceability (Wedemeyer in Festschrift Traub, 1994, S. 437, 446; Rieble, Labor market and competition, 1996, Rn. 1041; Locksmith, BB 2003, 1382, 1383; Schlegelberger / Schröder, HGB, 5. Ed, § 75f Rn. 2 a; Küttner / roller, Personalhandbuch, 20. Ed, Keyword poaching Rn. 11; Köhler in Köhler / Bornkamm, UWG, 32. Ed, § 4 Rn. 10.103).
bb) According to another opinion solicitation does not fall within the scope of § An-75f set 1 HGB, if they prohibit only the solicitation targeted at the initiative of the employer (Bauer / Diller in commemorative helmet, 2002, S. 3, 6 f.; Salger / Breitfeld, BB 2004, 2574, 2578; Wolf, NZG 2004, 366, 367 f.; Hurek, Abwerbungs- and setting prohibitions in employment, 2005, S. 111; Werder / food, BB 2010, 2903, 2910; Heymann / Henssler, HGB, 2. Ed, § 75f Rn. 4; Weber in Großkomm.HGB, 5. Ed, § 75f Rn. 3, 6; Boecken in Ebenroth / Boujong / Joost / Strohn, HGB, 3. Ed, § 75f Rn. 9; MünchKomm.HGB / von Hoyningen-Huene, 3. Ed, § 75f Rn. 5; Diller in Henssler / Willemsen / Kalb, Labour, 5. Ed, § 75f HGB Rn. 5; Thiemann-Marggraf in Oetker, HGB, 3. Ed, § 75f Rn. 2; Hagen BeckOK HGB, § 75f Rn. 6 (Stand 1. December 2013); Oetker in Erfurter Kommentar zum Arbeitsrecht, 14. Ed, § 75f HGB Rn. 1).
cc) According to another view solicitation with Vertragsstra-fen should be enforceable in certain cases. This will then apply, if the agreement relates to matters, where a breach of regulations
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present the Law against Unfair Competition, about by an Un-contractor by a competitor poaching of employees targeted in Sin-ne of § 4 No.. 10 UWG Disabled (vgl. to § 1 UWG oF Eggert, Lock agreements among employers, 2001, S. 78 ff.) or where Un-Individual entrepreneurs involved between a special relationship of trust (Weiland, BB 1976, 1179, 1180; Wagner in reeds / von Westphalen / Haas, HGB, 4. Ed, § 75f Rn. 7).
c) The Federal Court the question, whether § 75f HGB to contractual non-solicitation between employers apply, yet un-retired. Contrary also not clear from the judgment of the Federal Supreme Court of Justice of- 30. April 1974 VI ZR 132/72 (NJW 1974, 1330). This de-sion was not a non-solicitation, but setting a prohibition is.
d) According to the text, the history and the meaning and purpose of the standard fall agreed between companies solicitation in principle within the scope of § 75f HGB.
aa) For this, first, the wording of the standard. A contractual non-solicitation may be easily interpreted as agreement, set a work-contractor of the contractor within the meaning of § 75f HGB only under certain conditions.
Under a solicitation of employees is the action on a contract of employment workers with the aim of, to move this to the work-place change, understood (Locksmith, BB 2003, 1382). It can be as-her only spoken by a poaching of workers, if the abgeworbene employee terminates his previous employment
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and is hired by a new employer. Under § 75f HGB after this a clause, according to the company undertake mutually, adjust only work-pants, who by themselves to potential employers ge-applied. The thing is after the present case to be assessed Abwerbever-bot otherwise. From the concrete formulation skill of contract-closing company but can not depend on the scope of § 75f HGB.
bb) The legislative history of § 75f HGB and the pursuit of creating this standard legis speak for their application to non-solicitation (vgl. the genesis BGH, BB 1973, 427, 428; Eggert, Lock agreements among employers ibid S. 27-31; Ramrath, Festgabe Sandrock, 1995, S. 255, 269 f.).
(1) Crucial to understanding the norm is their co-hang with the regulation of the non-competition agreement for hand-lung mates in §§ 74 bis 75d HGB. Although already saw the §§ 74 and 75 Commercial Code as amended by the Act of 10. More 1897 before, dass nachvertragli-che Wettbewerbsverbote unwirksam sind, where such clerks in their professional progress unreasonably restricted (RGBl. 1897, S. 235). The-se rules allowed the principals, however,, ohne Risiken weit ge-fasste nachvertragliche Wettbewerbsverbote zu vereinbaren. Therefore associations of shop assistants invited by the Reichstag a revision of the law of the non-compete provisions. This led to a draft law, of a substantial change to the old system contained the principle of be-paid maternity leave. The possibility of blocking agreements among employers but was not initially included in the bill. Since it would have been imposed for principals, the future for post-contractual Bet-
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to avoid competition prohibitions provided compensation obligation by blocking agreements, voices were raised, to ourselves by the rules of blocking agreements (vgl. this report the 12. Commission on a draft law amending the §§ 74, 75 and § 76 Abs. 1 of the Commercial-buchs, RT-Drucks. 1914, Appendix to the stenographic reports band 303 No.. 1387, S. 2803, 2847 ff.). This led to the introduction of the scheme of § 75f Commercial Code by the Law of 10. June 1914 (RGBl. 1914, S. 209), which was indeed adapted editorial in the fol-tide, content but continue to apply unchanged to this day.
By §§ 74 ff. HGB to the interests of the employee to be-nem professional advancement after the end of the employment relationship against the interest of the entrepreneur, sich durch Wettbewerbsverbote vor einer Abwanderung seines Personals zu Konkurrenzunternehmen zu schüt-zen, are generally given priority (BGH, NJW 1974, 1282). The employer, wants to prevent migration of its employees, should agree with them a competition ban and paying a waiting allowance. An obstruction of the outflow of employees without compensa-tion payments to those affected by Employer agreements should be prevented compared demge-. The employee should be allowed to choose his or her job due-free addition. In this context, § 75f HGB comes to the function, to prevent circumvention of this objective. The legally standardized non-binding agreement is a barrier so that the realization of the nature of. 12 Abs. 1 GG protected the individual right of professional self-determination (BGH, NJW 1974, 1282, 1283; BGH, Judgment of 27. September 1983 VI ZR 294/81, BGHZ 88, 260, 265).
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(2) This was intended by § 75f HGB protection of the worker is also affected by the agreement of a non-solicitation between entrepreneurs in general to an extent, that it is justified, such an agreement the scope of § 75f HGB to be stel-len.
This can not be successfully countered by the, the agreement of the prohibition of active recruitment efforts staged an entrepreneur did not prevent an employee because, to apply their own accord to such a point and to change his workplace (but Bauer / Diller in commemorative helmet ibid S. 3, 6 f.; Wolf, NZG 2004, 366, 368; Salger / Breitfeld, BB 2004, 2574, 2578; Hurek, Abwerbungs- and setting prohibitions in the labor contract ibid S. 111; Sahavi, The effectiveness of post-contractual competition restrictions in English and German Law, 2005, S. 157; Diller in Henssler / Willemsen / Kalb AAO § 75f HGB Rn. 5).
Besides the possibility of a worker, to apply their own accord on a free space, it belongs to the standard practice of sub-participants in filling vacancies, Arbeitnehmer von sich aus oder unter Einschaltung von Personalberatern auf Stellenangebote anzusprechen (vgl. BGH, Judgment of 4. March 2004 I ZR 221/01, BGHZ 158, 174 Direktan-language workplace I; Judgment of 9. February 2006 I ZR 73/02, Wheat 2006, 426 = WRP 2006, 577 OHCA in the workplace II, Decision of 13. December 2007 I ZR 137/07, juris; Seriously, Wheat 2010, 963). Such enticement of foreign employees is generally allowed. Employers have no right to, that the existence of their employees is protected from competi-ence. As a result of free competition, it must employers
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accept, that staff are recruited. This may include a first contact in the workplace of the employee be permitted. This reflects the fact, that an employee has an interest, To learn of possible opportunities-, how to improve or change their job situation through a job change-. His freedom, to control their own professional advancement after the end of the employment relationship itself, to choose especially the workplace free, is by nature. 12 Abs. 1 Protected GG (vgl. BVerfGE 97, 169, 175).
A simple and important source of information for this is the possibility for the Ar-ees chance, be approached by a potential new employer or on his behalf by a personal advisor to Kings-nen (vgl. BGHZ 158, 174, 182 OHCA in the workplace I). A work-pants, who is employed by an employer, has agreed with other com-pany a non-solicitation, loses the opportunity, of the konkre-th employment interest of these other companies knowledge Erlan-gen, and to improve their professional development by targeting an interested employer to, without the employee receives a compensa-tion therefor. This contradicts the purpose of § 75f HGB.
3. However, there are special case constellations, where there is a Be-long the employee concerned overriding interest of the employer-side by a judicial enforceability of non-solicitation. Also has the entrepreneur as an employer by way. 2 Abs. 1, Art. 12 Abs. 1 GG protected right to freedom of economic activity. This includes the right of the entrepreneur, not to be non-relatively restricted or impeded in its market success (vgl. BVerfGE 97, 228, 253; Constitutional Court, NJWRR 2004, 1710, 1711). In this respect, § 75f HGB Makeup-
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Compliant interpreted restrictively. In certain cases, non-solicitation are exempt from the wide scope of the wording of § 75f HGB and therefore to be treated as enforceable.
a) This applies first of all the cases, in which the behavior of the ex-employer advertising represents an unfair commercial practice, the prohibition can be claimed under the provisions of the UWG. Does ei-nem such a case the debtor from a criminal sanction Unterlassungserklä-tion, it would lead to inconsistent results, if from ei-nem such contractual penalties authorized claims to the we-gen § 75f set 2 HGB court could not enforce.
b) Also fall sol-che agreements not within the scope of § 75f HGB, where the non-solicitation is not the main purpose, son-countries in which it is merely ancillary provision, wearing a special relationship of trust between the parties or a special vulnerability of either bill Contracting Parties. Serves a devaluation-beverbot protection from unscrupulous exploitation of knowledge, which have been obtained in Rah-men of such contractual relationships and their settlement, there is no reason, to fail the judicial enforceability.
For this group of cases are about non-solicitation, which are ver-agreed at Risikoprü-tests before buying from companies or participations (undertow. Due diligence) and is exempt from Anwendungsbe-rich § 75f of the German Commercial Code. A similar situation might exist in a spin-off of assets or subsidiaries or distribution agreements between independent enterprises. Also in this case, constellations, the judicial enforceability of devaluation-
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be offered bever offered for a proper contract management necessary and a one-restrictive interpretation of § 75f HGB.
c) This would make § 75f HGB enforceability of speech here in ste-existing agreement does not a priori opposed, because the findings of the court justify the assumption, that has passed a special relationship of trust between the parties in the above sense. Even after detachment of the defendant from the group of companies of the applicant, the parties sold their products on the basis of Kooperationsver-contract initially jointly, so that both sides knew the details of the employees-terstamms of each other's company.
4. The poaching of two employees of the applicant, the year 2009 should be-he follows, however, no longer falls within the period, for a non-solicitation is present longer than permitted. The parties have indeed in § 12 Abs. 1 committed to the cooperation agreement, after completion of the ver-contractual cooperation poach employees of the contractor to three years. However, such a non-solicitation agreements exceeds the permissi-sible for such period, the principle shall not exceed two years after termination of the co-operation.
a) A court in spite of the provisions of § 75f HGB enforceable ex-advertising ban may hinder employees in their professional progress. Such an agreement is justified by the special interest of the parties, is concerned, before a non-conforming use of the Ge-business operations of the other party, to protect from the contractual relationship re-sulting knowledge. This interest is also on the
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End of the contractual relationship beyond, but is typically weaker with increasing the time-.
b) The jurisprudence of the Federal Court is recognized for comparable constellations, that a non-compete for more than two years after the end of the contract can not be effective.
So violates a beyond two years continuous post-contractual betting competition banned for one from a partnership of members of the liberal professions-divorced partner in temporal terms of § 138 BGB, because have the knotted during the membership of the Ge-company client connections typically achieved after a period of two years, that the retired partner like any other competitor can be-is (BGH, Judgment of 8. More 2000 II ZR 308/98, NJW 2000, 2584, 2585; Judgment of 29. September 2003 II ZR 59/02, NJW 2004, 66; Judgment of 18. July 2005 II ZR 159/03, NJW 2005, 3061, 3062). Die Frist von zwei Jahren ist auch für Wettbewerbsverbote in Form von Mandantenschutzklauseln als zeitliche Grenze anzusehen (vgl. BGH, Judgment of 29. January 1996 II ZR 286/94, NJWRR 1996, 741, 742).
c) And legal regulations for a time limit on the enforceability of Abwerbever-offered to a maximum of two years speak in § 74a Abs. 1 Sentence 3 HGB und § 90a Abs. 1 Sentence 2 HGB. These rules fail an agreed between a contractor and a shop assistant or sales representatives restraint clause for the effectiveness, goes beyond a period of two years after termination of the contractual relationship. You bring the legislative intent expressed, that A lies in a non-competition clause-
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restriction of freedom of occupation the worker is thereby bound along-least justified for such a period. The same must be true of Supply agreements between employers in the form of non-solicitation, the employees concerned for their thereof can also have similar effects.
d) Whether in exceptional cases, a legitimate interest in a com-mers to a more than two years of non-solicitation may be, need not be decided. In the present case such exceptions-cases when ordered is not in any case where. He also does not follow, that the appli-rin also has a similar restriction in favor of the defendant unterwor-fen. After a time period of two years after the end of the contractual relationship can here no more side a legitimate interest in a continuing restriction of Abwerbemöglichkeiten have (vgl. BGH, NJWRR 1996, 741, 742).
The standing in armed poaching should 2009 be done, therefore, in the third year after the effective date of termination of the contract of Kooperationsver-parties by the defendant to 31. December 2006. In a permissi-sible maximum duration of the non-solicitation of two years, the defendant was in 2009 no longer obliged to refrain from poaching. She has forfeited this reason also not asserted in the action contract punish.
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III. The cost is based on § 91 Abs. 1, § 97 Abs. 1 ZPO.

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