Konkurrensbegränsande anställningsavtalsklausuler i Sverige och Danmark - en komparativ studie

Sammanfattning: The aim of this thesis to produce a comparative illustration of the Swedish and Danish regulations on the permission of restrictive covenant clauses in employment contracts in the private sector. The study is confined to regulation of clauses which concern circumstances after the termination of employment. In this thesis, the term covenant in restraint of competition means a contract provision which prevents the employee from, after the termination of employment, running or being employed by a company which is a competitor to their previous employer. A customer restriction clause allows the previous employee to partake in competitive activity, but prohibits targeting the previous employer's customers. A duty of confidentiality clause regulates the employee's right to spread or make use of knowledge they had access to during employment. This division into different terms is not typical for either country. It is instead a combination of terms from both countries' legal systems. The division has been done according to different protection requirements in order to facilitate a comparison. The term restrictive covenant (employment) contract clause is used as a collective term for competition, customer and confidentiality clauses. In both Danish and Swedish law there are certain laws that regulate the permission of competition and customer clauses for particular employees. In Denmark, this is provided primarily by ''Funktionærloven'' (White Collar Workers Act), whilst in Sweden by the so-called 1969 Agreement. This agreement is considered to be a general legal principle and has a strong influence when judging legitimacy according to 38 § in the Contract Act in Swedish law. There are numerous essential differences between regulation of restrictive covenant clauses in Swedish and Danish law. Regarding covenant in restraint of competition, the basic principles are essentially the opposite. The contractual freedom in Denmark has the option of modifying or declaring invalid clauses which are too far-reaching. The equivalent regulation in Swedish law, in the 1969 Agreement, essentially prohibits covenants in restraint of competition in the employment market, with a few specified exceptions. Allowance for covenants in restraint of competition appears to exist in both countries' legal systems however, and there are a few common denominators. The allowance is decided by the value of that which is to be protected and how restrictive the clause is for the employee's ability to carry out their occupation. In general, it can be said that covenants in restraint of competition in Danish law are most common in the trade sector&semic whilst in Swedish law the view on clauses in the trade sector are particularly restrictive. Regarding customer restriction clauses, the differences between Danish and Swedish law appear to be even greater. In Danish law, the clauses belong in the legal area covered by § 36 Contract Act. In Danish state practice, customer restriction clauses can only in exceptional cases be declared invalid on the basis of this rule of law. In Swedish law, customer restriction clauses are equated with covenants in restraint of competition and the chance of their approval by the Labour Court is considered as limited as that of other clauses which are not covered by the 1969 Agreement. The extent to which duty of confidentiality clauses are permitted is relatively unclear in both countries, however, one can make estimations by looking at the present legal situation in adjacent areas of law. In both countries there are specific regulations which cover the same area of protection as duty of confidentiality clauses. In Sweden however, the legal protection from FHL, Trade Secrets Act, is relatively weak and a duty of confidentiality clause can become relevant both in terms of civil law and for the application of FHL. In Denmark, the legal protection is strong&semic there are inter alia penalties for using or spreading company secrets up to three years after the termination of employment. A duty of confidentiality clause has primarily a psychological effect but can even in some cases have the effect of extending the area of protection. The concluding chapter comprises inter alia a comparison of the development in the employment market in general and a discussion about protection of employment and flexicurity.