Non-compete clauses in Belgian labour law: a QuickStart guide
Non-compete clauses are a familiar staple in Belgian employment agreements, reflecting the tension between protecting business interests and respecting employee mobility. As companies strive to maintain their competitive edge, they often use non-compete clauses to limit their former employees’ ability to join rival companies or start competing ventures. However, Belgian law recognises the importance of an individual’s professional freedom and imposes strict conditions on the validity and enforceability of such clauses.
This newsletter explores the key legal principles governing non-compete clauses in Belgian employment agreements, highlighting the balance struck between protecting employer interests and employee rights.
Setting the scene
When discussing non-compete clauses, it’s important to firstly point out that an employee is at all times forbidden from committing acts of unfair competition, both during and after their employment agreement. The non-compete clause enters the playing field as a means for companies to limit their (former) employee’s capacity to perform acts of fair competition.
Key principles of non-compete clauses
More specifically, a non-compete clause is defined as prohibiting the employee – blue-collar or white-collar worker –, after leaving the company, from engaging in (1) similar activities (2) which are likely to damage their former employer, (3) by exploiting knowledge they acquired during their employment. All aspects of this definition are prerequisites for a valid non-compete clause.
To be valid, a non-compete clause must be set out in writing, either when concluding the employment agreement, or at a later stage during the employment. The clause must relate to similar activities to the ones the employee is exercising for their employer, be geographically limited to areas where the employee could realistically compete with the company (and must in any case be limited to the Belgian territory) and cannot extend beyond 12 months after the end of the employment.
In addition, for a non-compete clause to have legal effect, there are salary thresholds that must be met. Importantly, these thresholds must be assessed at the end of the employment agreement, not when concluding the non-compete clause. The threshold amounts are indexed yearly; the below amounts are the ones applicable for 2025. If the employee’s annual gross salary is lower than EUR 43,106, the non-compete clause will not apply. For employees earning between EUR 43,106 and EUR 86,212, the clause can only apply to positions defined by collective bargaining agreement, in principle concluded in the relevant joint committee. For those earning above EUR 86,212, the clause is generally valid, except for roles specifically excluded by collective bargaining agreement. Not abiding by these salary thresholds results in a relative nullity in favour of the employee.
Belgian labour law also requires companies to pay a single, lump-sum compensatory payment to the employee in question, equal to at least half of the gross salary corresponding to the duration of the restriction, unless the company waives the application of the clause within 15 days following the end of the employment.
Apart from being waived by the employer, the clause also won’t apply if the employment ends during the first 6 months, if the company dismisses the employee without serious cause, or if the employee resigns for serious cause attributable to the company.
If a (former) employee breaches a valid and applicable non-compete clause, they must reimburse the compensatory payment they received and pay an equivalent amount as damages.
Deviating terms for certain white-collar workers – the so-called ‘international’ non-compete clause
Companies that are active internationally or that have an own research department can – when concluding non-compete clauses with their white-collar workers – deviate from the above-mentioned general conditions on a couple of fronts. As such, parties can agree that the geographical field of application extends beyond the Belgian border. The duration can also exceed 12 months, but the compensatory payment must still be equal to at least half of the gross salary corresponding to the duration of the restriction. Contrary to the general non-compete clause, this one won’t apply if the employee terminates the employment agreement for serious case attributable to the company.
Deviating terms for sales representatives
For sales representatives, there’s just one salary threshold: the non-compete clause will only apply if their gross annual salary exceeds EUR 43,106. Another difference compared to the general non-compete clause is that including a lump sum compensatory payment for the employee isn’t required. If the non-compete clause provides for a lump sum compensation for damages in case the employee breaches the non-compete, it can’t exceed three months’ gross pay.
Conclusion
Getting non-compete clauses just right requires careful consideration, both when drawing up the clause and at the moment the employment agreement is terminated. Ultimately, clarity and specificity are key, and by respecting statutory requirements around duration, geography, salary thresholds and compensation, employers can better protect their business interests while remaining compliant with Belgian labour law.
If you have any questions about the Belgian regulations on non-compete clauses for employees, don’t hesitate to reach out; we’d love to hear from you.
