The no. 630/21 Decision of the Single Member Court of First Instance of Athens, on a case successfully handled by our office, dismissed a suit by a former employer company against an employee seeking damages for breach of a post-contractual non-competition and confidentiality clause and awarded costs to the latter 2,000.00 euros. The employer was entitled to an amount of more than 80,000.00 euros as forfeiture of criminal clauses in the employment contract, as well as compensation and moral damage.
In particular, it was held that “an agreement whereby the weaker of the contracting parties is exploited because of his need or inexperience and is obliged to exercise the rights deriving from the contract, to undergo legal battles under particularly unfavorable conditions, may be considered contrary to morals therefore, either due to ignorance of the language of a foreign country, or due to the difficulty of staying in a foreign country without work, or due to the inability to entrust the defense of his case to a suitable legal representative or due to procedural or other obstacles or disadvantages as a result of which he does not venture any action thereby depriving him of his legal rights“.
The employer's choice to use the abusive extension of jurisdiction clause and to sue the employee in Athens, instead of Thessaloniki, which is the latter's place of work and residence, was criticized by the Court, which ruled that:
“In this case, it is clear that the conclusion of the extension is the product of the exploitation of the need of the plaintiff, who was in a weaker position when seeking work and could not negotiate the content of the contract proposed by the plaintiff“.
Subsequently, the Court ruled that it is not enough to report that the employee breached his obligations, but it should "to be sufficiently determined and in what exact way the plaintiff breached his obligations, since the secrets for which he did not keep confidential are not clearly stated, and what confidential information was provided to her competitor by his new employer", rejecting the Teaching as a whole as vague.
Next is the no. 630/21 Decision of the Single Member Court of First Instance of Athens
COURT OF FIRST INSTANCE OF ATHENS
PROCEDURE OF PROPERTY DISPUTES
DEPARTMENT OF LABOR DISPUTES
630/2021
THE SINGLE-MEMBER COURT OF FIRST INSTANCE OF ATHENS
CONSOLIDATED by Judge Michael Philippa, Court of First Instance, who was appointed by the President of the Three-Member Administrative Council of the Court of First Instance of Athens, and by the Secretary Georgia Karatsalo.
MEETED publicly in his audience on the 29ththe September 2021, to try the case between:
OF THE PLAINTIFF: A company with the name of …., which was represented by the attorney of … of the Athens Bar Association.
OF THE DEFENDANT: ….., who appeared after his Attorney Thomas Kalokiris with A.M. 11982 of the Thessaloniki Bar Association.
[…] During the discussion of the case and its presentation by the relevant board, the attorneys of the parties developed their claims and requested that what is mentioned in the minutes of the public meeting of the Court and the written proposals they submitted be accepted.
AFTER STUDYING THE LITIGATION
THOUGHT ACCORDING TO THE LAW
[….]From the provision of article 42§1 sec. 1 of the Civil Code, it follows that a first-instance regular court that is not territorially competent can, by express or implied agreement of the parties, become competent, unless it is a matter of disputes that do not have a property object, while from the provision of article 43 of the same Code, it follows that the agreement of the parties by which an ordinary Court becomes competent for future disputes is valid only if it is in writing and refers to a certain legal relationship, from which the disputes will arise. Besides, from the provision of article 44 of the Civil Code, it follows that the agreements according to articles 42 and 43 of the Civil Code create exclusive jurisdiction, unless the contract itself states otherwise. It follows from the above provisions that the agreement of the parties by which a regular Court becomes exclusively competent for future disputes is valid only if it is in writing and refers to a certain legal relationship, from which the disputes will arise. This agreement is a contract of a procedural nature, since the above provisions provide for the cases in which it is permitted and define the conditions under which it can be drawn up, which extends the local jurisdiction of the civil Courts (see EfATH 106 /2018, Efves 1823/2014 T.N.P. LAW, EfPir 364/1998 HellDni 1998 p. 897). Finally, in accordance with the provision of article 46 of the Civil Code, if the Court is not competent in terms of content or location, it shall rule on this ex officio at each stage of the trial and determine the competent Court, to which it refers the case, and the investigation of jurisdiction , because it is a procedural condition for the conduct of the trial, according to article 73 of the Civil Code, it concerns public order and precedes the investigation of any procedural and substantive objection, as well as the investigation of the legal merits of the action (see AP 784/ 1971 NoB 20, p. 485, EfATH 3159/2011 HellDni 2012, p. 161, Nika in Keramea/Kondyli/Nika, Interpretation KPolD, ed. 2000, article 46, number 6, p. 107). The agreement on the extrapolation of territorial jurisdiction is, as stated above, a procedural contract and for this reason is not subject to review under Article 281 of the Civil Code, because based on the evaluative criteria established by this article, the exercise of only those rights which derive from the substantive and not from those derived from procedural law (see AP 604/2018, AP 639/2012 T.N.P. LAW, EfThes 1823/2014 ibid.), in terms of which, however, application Article 116 of the Civil Code applies, which also requires the conduct of the trial in good faith and in accordance with good morals, without, however, otherwise providing for the nullity of the procedural act acted in violation of it {see AP 563/20 Io, AP 1595/2014, AP 1414/2011 T.N.P. LAW). Furthermore, according to the provisions of Articles 178 and 179 of the Civil Code, any legal act that is contrary to good morals is invalid, as is also the case with which the freedom of the person is excessively bound. This restriction is also subject to the agreement by which a court with no local jurisdiction, pursuant to articles 42, 43 and 44 of the Civil Code, becomes exclusively competent for adjudicating property disputes, which have arisen or will arise in the future between the interested parties . In particular, an agreement in which the weaker of the contracting parties is exploited due to need or inexperience and is obliged, in order to exercise the rights deriving from the contract, to undergo legal battles with particularly unfavorable conditions for this, either due to ignorance of the language of a foreign country, or due to the difficulty of staying in a foreign country without work, or due to the inability to entrust the defense of his case to a suitable legal representative or due to procedural or other obstacles or disadvantages resulting in Do not dare any action and thus deprives its legal rights (see CA 977/1985 Nov 1986, p. ..N.P.. LAW, BrPair 66/2021 posted on the website of the issuing Court, MonProTATH 2024/2013 T.N.P. LAW).
[..] En in this case, the plaintiff states in her current action that she maintains a business.... in Thessaloniki. That by virtue of the 25-1-2019 indefinite-term dependent employment contract, he hired the defendant as a full-time employee. That the written employment contract contained confidentiality and non-competition clauses during the validity of the contract and for six months after its termination, under the threat of a penalty clause equal to the equivalent of 12 monthly salaries. That the plaintiff violated these terms and the obligation of loyalty to his employer, and specifically, after receiving copies of the client list ..[..] and making contacts [..], he voluntarily left his job and immediately started working with a competing company , in which he disclosed confidential information of his previous employer, even succeeding in seducing two trainees [...] And that in this way he caused her a financial loss due to the loss of receipts from tuition fees, and caused her moral damage. It requests, for these reasons, after an admissible and legal partial limitation of the request of the lawsuit, from an entirely negative vote to a partial recognition, made with its proposals (which, being clearer and referring to a smaller amount, prevails over the different content and vague oral statement of her attorney at the hearing on the objection of the amount of 20,000 euros, which is contained in the minutes of the public meeting of the Court at the same time as this decision), that the defendant be obliged to pay her the amount of 19,568.16 euros as a forfeiture penalty clause , to be recognized as having to pay her in addition the amount of 40,000.00 euros as compensation and as monetary satisfaction for her moral damage the amount of 30,000.00 euros, to deport the defendant in personal custody as a means of executing the decision that will be issued , to declare the decision temporarily enforceable, and to order the defendant to pay the court costs. With this content and requests, this action, for the counter-voting request of which the payment of a formal court fee is not required, since it does not exceed the amount of 20,000.00 euros, which is the minimum threshold for exemption from the payment of the court fee provided for in labor disputes official document (71 EsNKPolD in conjunction with the regulation of article 14 par. 2 of the KPolD on the monetary limit of the substantive jurisdiction of the Magistrate's Courts), was duly filed and is being brought to be discussed before this Court, the objection raised regarding the jurisdiction of the Court being rejected .
In particular, the plaintiff invokes, in order to establish the territorial jurisdiction of the Court, a clause according to articles 42 and 44 of the Civil Code of Extrajurisdiction which was included in the 25-1-2019 contract of dependent work that she concluded with the defendant. The defendant, for his part, pleads that this extrapolation of jurisdiction clause is invalid as abusive, because it is a general transaction term that the defendant placed as a pre-formulated term in all non-negotiated employment contracts, with the aim of making it difficult for the employees to represent themselves in the future in the Court, and that in this case the Courts of Thessaloniki are competent, since it is the defendant's place of residence, provision of work and existence of a branch of the employing company. In this case, it is clear that the conclusion of the extension is the product of the exploitation of the need of the plaintiff, who was in a weaker position when seeking work and could not negotiate the content of the contract proposed by the plaintiff. However, in concreto the rights and obligations of the parties were not unduly disturbed, since the Courts of the capital of the state were designated as competent, in which representation is easy and does not cause prohibitive costs, and the plaintiff was in fact not prevented from defending himself of having appeared before the Court after his witnesses and no specific procedural harm is invoked due to the extrapolation of the Court's jurisdiction. In this regard, it does not appear that the invocation of the extrapolation of jurisdiction by the plaintiff in her petition, as a procedural act, constitutes an abuse of a procedural right in violation of Article 116 of the Civil Code.
However, the action must be dismissed as inadmissible for indefiniteness. First of all, regarding the request for forfeiture of the penalty clause, it is not specified in the documents whether the forfeiture is requested due to a violation that occurred before or after the termination of the employment contract, and based on which provision of the contract is requested, the one concerning the during the contract breach of the employee's obligations or the one concerning his obligations after the termination of the contract. The document contains cumulatively and in a vague manner factual incidents that relate to both of these cases, so that no conclusion can be drawn, and any admission that both cases are invoked cumulatively leads to a conclusion of indeterminacy as to the amount of the request concerning each. In this regard, it is not sufficiently specified and in what exact way the plaintiff breached his obligations, since the secrets for which he did not keep confidential are not clearly mentioned, and what confidential information was provided to his competitor by his new employer, except that reference is made to the dispatch of trainees, without even mentioning their number as an estimate. With regard to the compensation request, in addition to the above, it is not specified what exactly was the damage suffered, since the amount of 40,000.00 euros is vaguely mentioned without mentioning the way it was calculated, except that tuition fees in the amount of 3,000 are mentioned. 00 and 6,000.00 euros, which are not even multiples of the amount requested, so that no safe conclusion can be drawn. These entail autonomy and the request for the award of monetary satisfaction, since it is not described in the petition. in a certain way the wrongful act allegedly caused moral damage. Pursuant to all of the above, the lawsuit must be rejected as inadmissible due to vagueness, and the plaintiff, due to her defeat, must be sentenced according to article 176 of the Civil Code, to pay the defendant his court costs, according to the specific provisions of the ordinance.
FOR THOSE REASONS
HE JUDGES against the objection of the parties.
DISMISSES the action.
CONDEMNING the plaintiff to pay the defendant as his court costs the amount of two thousand (2.000,00) euro.
Thomas Steph. Summer
MDE lawyer
Min. Doctor of Law, AUTH
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