At a glance
- Poaching is generally allowed
- Unfair with breach of contract or secret misuse
- Boycott calls are usually unlawful
Competition for customers, suppliers and talent is legitimate. Poaching becomes unfair only with additional circumstances.
Customers: approaching a competitor’s customers with better terms is allowed, even during contract terms, as long as only ordinary termination is encouraged. Unfair: inducing breach of contract, using customer lists obtained in breach of the Trade Secrets Act, misleading customers, disparaging the former supplier.
Employees: a short first call at the workplace to clarify interest is permitted; lengthy conversations during working hours are not. Poaching aimed at obstructing the competitor, or combined with taking trade secrets, is unfair.
Boycotts and refusals to supply are generally unfair obstruction; for dominant firms, antitrust law applies.
Distribution: use of marks, photos and customer data after termination, post-contractual non-compete for commercial agents (Section 90a HGB), selective distribution and imitation by former suppliers.
Case examples
Offering to pay a customer’s early-termination penalty to make them switch immediately is unfair; using regular termination rights is lawful.
Without a post-contractual non-compete, approaching former customers from memory is generally allowed; using copied lists is not.
Refusing supply because a dealer sells on marketplaces raises mainly competition-law (antitrust) issues.
