Die Grundlagen des vertragsbegleitenden Wettbewerbsverbotes im deutschen Arbeitsrecht

Federal Labour Court and scholarship agree: During the term of their employment, employees are legally prohibited to conduct any competing business to the detriment of their employer. Still, has said statutory non-compete clause been codified? With regards to shop assistants, such an interdiction is codified in sec. 60 par. German Commercial Code (“Handelsgesetzbuch”). However, for the bigger part of the employees there is no such legal provision.
Consequently, the present work is questioning the possible legal grounds for such a ban. Its main focus is on the understanding of the doctrinal base of Sec. 60 par. German Commercial Code as well as on the duty of allegiance as layed down in Sec 241 par. 2 German Civil Code (“Bürgerliches Gesetzbuch”). The thorough study concludes by stating that de lega lata such a non-compete clause can only result from contractual arrangements.