In this case, the employer's office where the employee was working was relocated. The parties disputed whether the non-competition clause also applied to the new branch (and surrounding area) of the employer or only to the former branch (and surrounding area) of the employer.

Employee joined Van Mossel in 2014 as an after sales manager on the basis of a fixed term employment contract. On 1 April 2016 the parties entered into an employment contract for an indefinite period. That employment contract included a non-competition clause. The employee gave notice of termination of his employment contract with Van Mossel on 31 May 2021 because he wanted to join Klaas & Terlouw B.V. on 1 September 2021. When Van Mossel became aware of this intention, it drew the employee's attention to the non-competition clause and took the position that the employee would be in breach of the non-competition clause if he were to take up employment with Klaas & Terlouw as of 1 September 2021. The employee subsequently commenced summary proceedings, in which he primarily claimed the suspension of the non-competition clause. The Subdistrict Court allowed this claim. Van Mossel lodged an appeal against that judgment. Van Mossel lodged an appeal with the Court of Appeal, demanding that it dismiss the employee's claim for suspension and order the employee to pay Van Mossel an advance of €12,150 in forfeited fines.

The difference of opinion between the parties led the court to interpret the non-competition clause. According to established case law, when interpreting a written provision in a contract, it is not just a question of a purely linguistic interpretation of the provisions of the contract, but it is a question of the meaning that the parties could reasonably attribute to these provisions in the given circumstances and what they could reasonably expect from each other in this respect. The Court of Appeal added that a non-competition clause is by its nature onerous for an employee because it affects him in an important interest, namely the possibility to earn a living. This means that it is up to the employer to ensure that the scope of a non-competition clause is clear to the employee and that, in the event of uncertainty about its content, the clause should generally be interpreted in the employee's favour.

According to the Court of Appeal, Van Mossel has not sufficiently demonstrated that the parties consciously chose to apply the non-competition clause to the Enschede region after the move to Apeldoorn. In so far as Van Mossel deliberately included Enschede in the non-competition clause, it has not sufficiently demonstrated that its intention and the consequences thereof were known to the employee. Until the relocation, the basic principle was that the non-competition clause was linked to the place of business from which the employee worked. If, after the move, Van Mossel had wished to depart from this principle, it would have been incumbent on it to communicate this explicitly to the employee and point out the consequences to him. Failing this, the employee was not obliged to interpret the clause as meaning that it continued to apply to the Enschede region after the relocation. After all, it is not logical for a non-competition clause to refer to a place of business that has been closed down.

Under these circumstances, the Court of Appeal was of the preliminary opinion that the lack of clarity regarding the scope of application of the non-competition clause after the relocation should be for the account and risk of Van Mossel. This means that Van Mossel cannot hold the employee to the reference to Enschede and therefore not to the non-competition clause. In addition, Van Mossel had failed to make sufficiently plausible the fact that its business operations would be affected by the employee's move to Klaas & Terlouw and, consequently, it had a (compelling) interest in enforcing the non-competition clause around Enschede.

You can read the full judgment here.

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