Failing specific provisions in the applicable collective bargaining agreement (CBA) and in the employment contract on the form required to waive the non-compete obligation weighing on the employee, the employer is not bound to follow any specific formality.
On the contrary, if the applicable CBA sets out specific rules thereon, the employer is bound to comply with them.
This was confirmed by the French Supreme Court in a decision of July 3, 2024. The Court ruled that the employer wishing to waive the employee’s non-compete must do so in accordance with the terms and conditions of the clause. The employer cannot ignore the registered letter with return receipt requested in the employee’s employment contract, to replace it by a mere e-mail.
Failing to comply with the required form, the employer’s waiver is not valid. The employer is therefore not released from their obligation to pay to the employee the financial consideration for the non-compete obligation.
Please note that this decision confirms a previous ruling of the French Supreme Court of 2020 (French Supreme Court, October 10, 2020, n°19-18.399).