The post-contractual non-competition agreement: limits and safeguards

Abstract

This article examines the post‑contractual non‑competition agreement under Article 21 of the Spanish Workers’ Statute as an exceptional mechanism that restricts the constitutional right to work (art. 35.1 CE) only when strict statutory conditions are met. After defining its preventive nature and legal structure, the study analyses the requirements for its validity —individual origin, temporal limits, the employer’s effective industrial or commercial interest, and adequate compensation— through a restrictive interpretive lens, aimed at preventing its use as a standard contractual clause.

Attention is devoted to the notion of effective employer interest, which demands a case‑by‑case assessment of the real risk of competitive exploitation of transferable knowledge, internal practices or commercially relevant relationships gained by the worker. The paper also considers the role of collective bargaining, both to warn against contractual formulas that equate mere market overlap with unfair competition and to highlight its potential in structuring safeguards and clarifying the scope of such pacts.

The analysis further explores the interaction between post‑contractual non‑competition agreements and competition law, illustrating how certain widespread practices may distort competition. Nevertheless, competition‑law solutions cannot be mechanically transplanted into labour‑law settings, given the differing aims of each regulatory framework.