The Pan-European Lifeline of a Labour Non-Compete Clause. Protecting Competition in Labour Markets through a Human Rights Narrative: The Example of Serbia

Abstract

This article sets out to present the constituent elements of a labour law-specific non-compete clause through the example of legislative solutions from several EU jurisdictions and by considering the popularity of an extreme pole of thought that has emerged as a result of tendencies to restrict the enforceability of labour non-competes. The authors focus on the EU concept of the non-compete clause, providing an overview of legislative solutions in EU Member States, and by drawing on insights from competition law, they suggest that through the implementation of the requirement of the employer’s legitimate interest, competition in the labour market is indirectly protected through a human rights narrative and framework. The authors present examples from case law, illustrating solutions that apply strict EU conditions and that also employ a proportionality-based analysis. They argue for preserving the enforcement of non-compete clauses under EU-style conditions, which include a rights-based proportionality assessment; a good model solution for a non-compete clause must be based on the principle of legal certainty (attained by explicit normative codification of clearly defined constituent elements), applied in a manner that includes a proportionality-based analysis, on a case-by-case basis. The paper also provides insight into Serbian jurisprudence and regulation on this subject, and formulates suggestions for alignment with current tendencies.