Your contract says that for two years after leaving you may not “solicit, service or accept business from” your employer’s customers, and may not “induce any employee to leave.” These non-solicit and customer-protection clauses (Kundenschutzklauseln, Abwerbeverbote) look milder than a full non-compete — but under German law, a post-contractual customer-protection clause that materially restricts your professional activity is treated as a restraint of trade and is binding only if the employer pays you compensation of at least 50% of your last remuneration for its duration. No compensation, no written form, or a term beyond two years — and the clause does not bind you at all. Most clauses we see, especially those lifted from US or UK templates, fail this test completely.
The legal starting point: §§ 74 ff. HGB apply by analogy
German law regulates post-contractual restraints on employees in (§§ 74–75f HGB). The BAG applies these rules not only to classic non-compete clauses but by analogy to every post-contractual restriction that materially limits the employee’s professional activity — and a prohibition on dealing with the customers you have served for years is precisely such a restriction. For a salesperson, consultant, recruiter, asset manager or agency lead, “you may not touch our clients” often takes away the core of their marketable value.
The consequences of the §§ 74 ff. HGB framework:
- Written form (§ 74(1) HGB): the restraint must be agreed in writing with the signed document handed to the employee. Clauses in an unsigned handbook or a policy PDF do not qualify.
- Karenzentschädigung (§ 74(2) HGB): the employer must promise compensation of at least 50% of your last total remuneration (including bonus, commission, benefits) for every year of the restraint. A customer-protection clause without any compensation promise is nichtig — void — and you can ignore it entirely.
- Maximum two years (§ 74a(1) HGB): anything longer is unenforceable beyond the two-year mark.
- Legitimate business interest (§ 74a(1) HGB): the restraint must protect a genuine interest and must not unfairly impede your career — blanket “all customers, all prospects, worldwide” clauses overreach.
Void vs. non-binding — a distinction that matters
Two different defect categories with different consequences:
Void (nichtig): no obligation for anyone
No written form, or no compensation promised at all → the clause is void. You are free from day one; you cannot demand the compensation either.
Non-binding (unverbindlich): your choice
Compensation promised but below the statutory 50%, or the clause overreaches the employer’s legitimate interest → the clause is non-binding, and you choose: comply and claim the (promised) compensation, or disregard it and work freely. You must exercise the choice consistently at the start of the restraint period.
In practice, most customer-protection clauses in employment contracts fall in the first category — employers insert them without any compensation because they hope employees won’t know the law.
Colleague non-solicits (Abwerbeverbote)
Clauses prohibiting you from poaching former colleagues are assessed more leniently, because they typically restrict your professional activity less than a customer ban — you can do your job without recruiting your ex-teammates. Case law nonetheless imposes limits:
- Two-year cap: drawing on the valuation in (§ 75f HGB) — which governs no-poach agreements between employers and makes even those judicially unenforceable beyond narrow limits — courts cap post-contractual non-solicit obligations at two years.
- Active poaching only: a valid clause can prohibit actively luring colleagues away. It cannot prohibit colleagues from applying to your new employer on their own initiative, and it cannot ban you from ever working alongside them again.
- Materiality threshold: if the clause in substance stops a recruiter or team lead from working in their profession, it flips into the §§ 74 ff. HGB regime — compensation required.
Typical US-template clauses that fail German review
- “Non-solicitation of customers and prospective customers for 24 months” — no compensation: void.
- “Employee shall not accept business from any client of the Company group worldwide” — overbroad, covers customers you never worked with: at best non-binding.
- “36-month non-solicit” — exceeds the two-year maximum.
- “The Company may waive or enforce this clause at its discretion” — unilateral optionality is incompatible with the §§ 74 ff. HGB structure and typically voids the restraint.
- Clause contained only in a group-level “Restrictive Covenant Agreement” governed by Delaware or English law — choice of foreign law does not displace the mandatory protections of German employment law for an employee working in Germany (Art. 8 Rome I Regulation).
- Liquidated damages of “one year’s fees per solicited client” — contractual-penalty clauses in standard terms face their own strict review and frequently fail.
Spot these before you commit: restraint clauses are a standard checkpoint in our contract review before signing.
When the ex-employer threatens you
The typical scenario: three weeks after you start at a competitor, a lawyer’s letter arrives — cease and desist, penalty demand, threat of an injunction, copied to your new employer. The playbook:
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Establish what was actually agreed
Collect the contract, any covenant annex, and the termination paperwork. Check written form, compensation promise, duration, scope. The analysis is usually finished here.
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Do not sign the pre-formulated Unterlassungserklärung
The attached cease-and-desist declaration typically contains penalties and scope far beyond anything enforceable. Signing creates obligations the void clause never did.
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Respond through counsel, briefly
A short legal response citing (§ 74(2) HGB) ends most cases: no compensation, no restraint. Employers rarely take a void clause to court — an injunction application would fail and cost them.
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Manage the new employer
A one-page legal memo confirming the clause is unenforceable usually reassures the new employer far more effectively than your own explanations.
Worked example
A key-account manager at a Bonn-based SaaS company, gross salary €95,000 including on-target commission, resigns and joins a competitor. Her contract contains: “For 24 months after termination, the employee shall not directly or indirectly solicit or service any customer of the company.” No compensation is mentioned anywhere.
The ex-employer’s counsel demands a signed cease-and-desist with a €25,000 penalty per violation, asserting she has contacted two former accounts. Our response: the clause materially restricts her professional activity as a salesperson in a niche market, so (§§ 74 ff. HGB) apply by analogy; without any Karenzentschädigung the clause is void; there is nothing to cease and desist from. We decline the declaration and put the ex-employer on notice regarding costs.
Counter-scenario showing the economics: had the clause been valid, the employer would have owed her at least 50% × €95,000 × 2 years = €95,000 in compensation. Employers that actually want enforceable customer protection must pay for it — most would rather have a void clause and bluff. The bluff collapsed: no injunction was filed, and she services her accounts undisturbed.
Frequently asked questions
My clause says “non-solicit” but not “non-compete.” Doesn’t that make it enforceable without compensation?
No. Labels are irrelevant. The test is whether the clause materially restricts your professional activity after the employment ends. A customer ban for a client-facing professional does exactly that, so the non-compete rules — including the 50% compensation requirement — apply by analogy.
Can I contact former customers if they approach me first?
If the clause is void or non-binding and you have elected not to observe it: yes. Even under a valid clause, purely passive acceptance of business is often outside a prohibition on “soliciting” — but valid clauses frequently prohibit “servicing or accepting” too, so the wording matters. Note that using genuine trade secrets (e.g., taking a customer database with you) is a separate issue under the Trade Secrets Act (GeschGehG) — void restraint or not, don’t take data.
What about a non-solicit in my settlement agreement?
Restraints newly agreed in a termination or settlement agreement follow the same rules — a post-contractual customer ban without compensation is void even if you signed it on the way out. But beware: a settlement can validly waive compensation for an existing restraint or lift the restraint entirely, so have the interplay checked before signing.
My employer “waived” the non-solicit after I resigned. Do I still get compensation?
For genuine non-competes, a waiver (§ 75a HGB) frees you immediately but leaves the employer liable for compensation for up to one year from the waiver declaration. Where a customer-protection clause falls under the same regime by analogy, the same logic applies. This is a frequently overlooked money claim — check it before accepting “good news.”
Can my old and new employer agree between themselves that I won’t be hired?
Agreements between employers not to hire each other’s staff are legally toothless against you — (§ 75f HGB) makes them unenforceable in court, and as concerted practices they can violate competition law. If you lost a job offer because of such a pact, seek advice; damages claims are possible.