Non-solicitation clause

Some contracts put a company in direct contact with its partner’s teams or clients. A consulting firm places its consultants with its client for several months. An IT service provider works with its customer’s in-house teams. A distributor gets to know a supplier’s client portfolio.

The clause protects the investment exposed in this relationship: recruiting and training teams, or business development work. It prevents the contract from serving as a gateway to recruit the partner’s staff or to capture its clients.

Non-solicitation of employees is the most common form in business-to-business contracts. Each party, or only one, undertakes not to poach the other’s employees. The scope varies: all employees, or only those who took part in performing the contract.

Non-solicitation of clients prohibits approaching a party’s clients. It is found in business-to-business contracts, in business sales or shareholders’ agreements, and in employment contracts.

The choice of verb changes the scope of the clause. Prohibiting “soliciting” covers active outreach. Prohibiting “hiring” or “contracting with” may also cover the case where the employee or client takes the initiative. This difference often becomes the core of the dispute.

A non-compete clause prohibits carrying on a competing activity. A non-solicitation clause prohibits a specific approach toward specific people: the party bound by it can remain active in the same market.

The distinction matters most in an employment contract. An employee’s non-compete clause is only lawful if it is essential to protect the company’s legitimate interests, limited in time and space, suited to the specific features of the job and paired with financial compensation. The labor chamber of the Cour de cassation has already treated as a non-compete clause a clause prohibiting an employee from approaching the former employer’s clients: lacking financial compensation, it was void. The title alone is therefore not enough to avoid these conditions.

A proportionate restriction. According to the commercial chamber of the Cour de cassation, a clause that restricts freedom to work and freedom to conduct a business must be proportionate to the legitimate interests to be protected, given the purpose of the contract. Its scope and duration should therefore be tied to what the contract actually exposes. This 2021 decision concerned a clause agreed between competing companies, a situation that calls for particular attention.

A limited duration. Article 1210 of the French Civil Code prohibits perpetual commitments, and each party may end them as it would a contract of indefinite duration. Without a time limit, the clause also runs up against the proportionality requirement. Most clauses set a period after the contract ends.

A clear sanction. The clause often provides for a sum due in case of breach. It is then a penalty clause, which the court may reduce or increase if it is manifestly excessive or derisory, under Article 1231-5 of the French Civil Code.

Balance between partners. If it is imposed on one party only, with nothing in return, the clause may also be reviewed for significant imbalance: under Article L. 442-1 of the French Commercial Code between commercial partners, or under Article 1171 of the French Civil Code in a standard-form contract (contrat d’adhésion). How these two provisions interact should be checked case by case.

An agreement between companies not to poach each other’s employees may constitute a cartel. In its decision 25-D-03 of 11 June 2025, the French Competition Authority (Autorité de la concurrence) sanctioned general no-poach agreements in the engineering and IT services sectors.

The same decision distinguishes these agreements from non-solicitation clauses included in partnership contracts. After examining their content, their context and their limited scope, the Authority did not classify them as restrictions by object, without prejudging a different outcome in other circumstances. The clause’s link to a real contract and its limits therefore also matter on this front.

A clause agreed between two companies binds those two companies. The employee is not a party to it: it does not prevent the employee from changing employer and creates no obligation for the employee. It can still limit the employee’s opportunities, since a company will refrain from hiring them. The labor chamber has accepted that an employee may claim compensation for the harm caused by such a clause when it infringes their freedom to work.