Companies are regularly looking for suitable workers. “Poaching” employees is not only part of the business, but also part of free competition. This was decided by the Higher Regional Court of Oldenburg in a ruling of 18 September 2015 in a proceedings for interim legal protection (Case No. 6 U 135/15).

In the specific case, the Higher Regional Court of Oldenburg rejected the application of a company that wanted to prohibit a competitor from competing in its business area and from enticing its employees.

The plaintiff company distributes coffee vending machines for commercial enterprises and had bought a comparable company from two other shareholders. The conditions included a non-competition clause for the shareholders. In addition, they undertook not to entice away any employees. Both shareholders had a second company that sold vending machines for private households and offices. However, they had already transferred this company to their children´s names before they sold the other company. They did not inform the buyers.

As a result, some employees moved from the buyer’s company to the children’s business. The company filed a lawsuit for injunctive relief against the competition and the poaching of employees. If the application was still partially successful in the first instance, the OLG Oldenburg rejected the application in its entirety.

“The German Higher Regional Court did not see any kind of violation of the Act on Competition Law. Especially as the defendant company was not the right party to sue. After all, the two shareholders and not their children had subjected themselves to the non-competition clause”, explains lawyer Michael Horak from Hanover. It is possible but neither verifiable nor inevitable that the two shareholders still have a significant influence on the company of their children. Also the enticing away of employees belongs in principle to free competition and is anti-competitive only in the presence of special unfair circumstances.

The judgment of the Higher Regional Court is considered to be the final one. However, the plaintiff company can also assert its claims in the main proceedings.

Higher Regional Court of Oldenburg: “Poaching” Employees is not a violation of the Act on Competition in Germany

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