Non-Compete Clause During and After Probationary Period in Rotterdam

In Rotterdam, the vibrant port city teeming with startups and logistics giants, a non-compete clause linked to the probationary period poses additional risks for employers. If the probationary period is deemed void – for instance, due to a breach of collective labour agreement (CLA) rules in Rotterdam’s port companies – the clause may be partially invalidated, particularly if it imposes disproportionate burdens (Article 7:653 of the Dutch Civil Code). During a valid probationary period, a non-compete clause may be included, but after its conclusion, stricter requirements apply: it must be in writing, include a penalty clause, and have a reasonable duration (maximum of one year). If the probationary period is voided under Article 7:667c of the Dutch Civil Code, the probationary period clause lapses, while the main contract remains in force. Rotterdam courts, as seen in ECLI:NL:RBROT:2022:789 where the District Court of Rotterdam annulled a non-compete clause following a void probationary period in the case of an employee switching to a port competitor, rigorously assess cases for abuse of circumstances. Employers in Rotterdam’s hotspots such as Kop van Zuid or Merwe-Vierhavens should decouple the non-compete clause from the probationary period to mitigate risks. Employees: challenge the clause when switching to a local competitor, with support from trade unions such as FNV Havens. Practice in Rotterdam’s startups often reveals misuse through vague wording in employment contracts. Advice: have it reviewed by a Rotterdam employment lawyer; negotiate penalty exemptions. The 2024 legislative amendment eases rules for startups but offers no relief in cases of nullity. This helps avoid legal pitfalls in Rotterdam’s dynamic labour mobility.