Non-competition clause for commercial travellers: when the contract goes further than the collective agreement

Imagine: you are a commercial traveller (VRP) in Mulhouse, with a territory defined as the communes of Thann and surrounding areas. Your employment contract prohibits you, after termination, from working for a competitor in the entire department of Haut-Rhin. Does that seem fair to you? The Court of Cassation answered no, in a ruling of 14 November 2007, annulling an overly broad clause. But what does this actually change for you, as an owner or employee? Let's break it down.

This decision concerns commercial travellers, but its principle applies to any employment contract: the collective agreement (the text setting out minimum rules for a profession) takes precedence over the individual contract. If the contract imposes more constraints than the collective agreement, it is void. A simple question, but with serious consequences: how far can the freedom to work of a former employee be restricted?

The ruling of 14 November 2007 (No. 06-44.284) perfectly illustrates this conflict. A commercial traveller for the company Richez Distribution, based in Lille, was prohibited from any activity in the Nord department, even though his actual territory was 'Lille and its suburbs'. The court ruled: the clause is void, because the collective agreement for commercial travellers prohibits extending the restriction beyond the usual territory. A lesson for employers, but also protection for employees.

The facts: a story that happens every day

Mr. Y, a commercial traveller for the company Richez Distribution since 1999, had as his territory 'Lille and its suburbs', then more precisely 'inner Lille and South Lille'. After a trial period, he prospected exclusively within this perimeter. His employment contract contained a non-competition clause prohibiting him from working for a competitor after termination covering the entire Nord department. In 2003, Mr. Y resigned and joined the company Socoldis, a direct competitor, to serve clients in the Lille area. Richez Distribution then sued him before the employment tribunal for breach of the clause.

The Lille employment tribunal ruled in favour of the employer, but the Douai Court of Appeal overturned this judgment in 2006. Richez Distribution appealed to the Court of Cassation. However, the High Court upheld the appeal ruling: the non-competition clause was void because it was too extensive compared to the provisions of the national collective agreement for commercial travellers (which provides that the restriction must be limited to the territory or category of clients that the employee visited).

What few people know is that the collective agreement for commercial travellers is particularly protective: it requires the clause to be limited in time (generally 2 years) and in space. Here, the employer had extended the restriction to the entire department, whereas the employee only worked in Lille and its surroundings. The court therefore held that the clause was 'more binding on the employee' than the collective agreement, rendering it void as of right.

The reasoning of the court — dissected

The judges of the Court of Cassation relied on Article L. 731-1 of the Labour Code (now Articles L. 7311-1 et seq.) which sets out the status of commercial travellers, and especially on the national collective agreement for commercial travellers of 3 October 1975. This agreement states, in its Article 24, that the non-competition restriction 'must only cover the territory or categories of clients that the commercial traveller was responsible for visiting at the time of termination'. In other words, you cannot prohibit him from working in an area he did not prospect.

Richez Distribution argued that the clause was valid because the commercial traveller had accepted it by signing his contract. But the court recalled a fundamental principle: a collective agreement is a matter of public policy (it binds everyone, including the individual contract). A contract cannot derogate from the collective agreement in a way less favourable to the employee. This is known as the principle of favour: the most advantageous rule for the employee prevails.

In short, even if Mr. Y had signed the clause, it was void because it violated the collective agreement. However, the nullity is not automatic; it must be claimed in court. In this case, the Court of Appeal had found that the commercial traveller's territory was limited to 'Lille and its suburbs', while the restriction covered the entire Nord department. The Court of Cassation validated this reasoning, holding that the mere discrepancy between the actual territory and the restriction was sufficient to annul the clause.

What this changes for you — concretely

For employers: you cannot impose a non-competition clause broader than what the collective agreement provides. If your collective agreement limits the restriction to a specific geographical area (e.g., 'the Nord department' for a commercial traveller who worked in Lille), you must respect that limit. In my practice, I have encountered cases where employers in Mulhouse prohibited a former commercial traveller from working anywhere in Haut-Rhin, even though his territory was only Thann and surroundings. Result: clause void, and the employer may be ordered to pay damages (between €5,000 and €20,000 depending on seniority and prejudice).

For employees: you can challenge an overly broad clause. If you are a commercial traveller and your contract prohibits you from working in an area much larger than your usual territory, you can take the matter to the employment tribunal to have the clause annulled. In the meantime, you can freely work for a competitor, without fear of legal action. But beware: if the clause is valid, you must respect it, or risk having to pay damages (often equivalent to 6 to 12 months' salary).

For landlord owners: this decision does not directly concern you, but it illustrates a general principle: the contract cannot derogate from mandatory provisions. For example, in a residential lease, you cannot prohibit the tenant from hosting relatives, because the law allows it. Similarly, an overly broad non-competition clause is void. If you are in this situation, you must check the applicable texts.

Four tips to avoid this type of dispute

• Check the applicable collective agreement: Before drafting a non-competition clause, consult the collective agreement for your industry. It sets out geographical, temporal, and material limits. Do not rely on a generic template.
• Limit the clause to the employee's actual territory: The restriction must correspond exactly to the territory or category of clients that the employee visited. If your commercial traveller works in Mulhouse and surroundings, do not extend the restriction to the entire Haut-Rhin department.
• Provide financial compensation: The collective agreement for commercial travellers often requires a non-competition indemnity (usually 1/3 or 2/3 of monthly salary during the restriction period). Its absence may render the clause void.
• Have the contract reviewed by a lawyer: A specialist in employment law will detect abusive clauses or those contrary to the collective agreement. The investment (€200-500) is negligible compared to the cost of a trial (€5,000-20,000).

Further reading: related case law and developments

This decision is part of a consistent line of the Court of Cassation. As early as 1999 (ruling No. 96-45.629), the social chamber held that a non-competition clause could not be more extensive than what the collective agreement provides. In 2003 (ruling No. 01-43.025), it specified that the nullity of the clause does not deprive the employee of the right to the non-competition indemnity if the employer waived the clause after termination. In other words, if the employer wants to release the employee from the restriction, he must do so in writing and pay the due indemnity.

The tendency of the courts is therefore protective of the employee: any clause that excessively restricts professional freedom is suspect. Judges verify that the clause is essential to protect the legitimate interests of the company (know-how, clientele) and proportionate in time and space. In the future, with the multiplication of employment contracts, expect judges to be even stricter, especially if the clause is not accompanied by financial compensation.

In practice: what to do

FAQ:

• What if my contract contains an overly broad non-competition clause? Consult a lawyer to verify its validity. If it is void, you can ignore it and work for a competitor. But if it is valid, you must respect it or negotiate a waiver.
• Can I challenge the clause after resigning? Yes, you have up to 5 years (statute of limitations in employment law) to bring the matter before the employment tribunal. In the meantime, if you violate the clause, you risk damages.
• What is the cost of legal action? Employment tribunals are free, but if you hire a lawyer, expect between €1,500 and €5,000 depending on complexity. Legal aid may be available subject to income conditions.
• Can the employer remove the clause after my departure? Yes, he can waive it in writing, but he must pay you the non-competition indemnity due up to the waiver.

Are you in a similar situation? A first 30-minute consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →