Disputed business non-compete: may you trade again or approach customers?

1. Identify the capacity in which you agreed

Find the complete document containing the restriction. Is it a sale of shares, a sale of activities, a cooperation agreement or a services assignment? Also note whether you were additionally an employee, director or shareholder. The same term, non-compete, can appear in different documents. Send all the agreements involved rather than selecting one provision yourself as the only relevant arrangement.

Rijksoverheid’s official explanation of non-competes concerns employment contracts. Those rules must not be applied indiscriminately to every business relationship without investigation. If the doubt is precisely whether the relationship really involved independent services or employment, say so explicitly. The legal classification of the relationship must be examined before reaching a firm conclusion about the clause.

If the clause is actually part of an employment contract, review non-compete clauses under employment law. Rules for a commercial agreement cannot simply be applied to an employee.

If there is a real question whether the contractor is actually an employee, first examine false self-employment and the status of the working relationship. A non-compete clause alone does not decide that issue.

2. Map prohibited acts precisely

Mark whether the contract refers to competing work, involvement in a business, contact with business relationships or approaching staff. These are not automatically identical prohibitions. Ask who the provision binds and whether it also mentions acting through another business. Then describe concretely what you want to do or what the other party says you have already done.

Compare the wording with the intended activity. For a new assignment, specify the customer, tasks and your role, for example. For an investment, state whether you also work in the business in practice. Have the adviser assess the wording in context. Choosing a different trading name does not independently answer whether the actual activities are covered by the agreement.

3. Examine duration, territory and meaning

Write out the starting point, end point and geographical description. If the parties disagree about meaning, preserve negotiations and explanations too. In a 2025 decision on a geographically limited clause, Rechtbank Oost-Brabant showed that interpretation does not follow solely from one isolated phrase: statements, conduct and mutual expectations also matter. That case does not give an automatic outcome for your own contract.

Use a map or timeline as a practical explanation, but have the legal starting point checked. A radius around an address, for example, differs from an area linked to an entire municipality. Also ask which products, services or relationships fall within the restriction. A clear end date does not resolve an unclear ban on particular work.

4. Do not overlook competition law

ACM explains that competition rules matter for agreements between businesses, including parties at different levels in a chain. A signature on a business document is therefore not the only question when market behaviour is restricted. Have the nature and scope assessed for competition-law issues alongside interpretation of the contract.

ACM Samenwerkcheck is a tool from which no rights can be derived and directs mergers and acquisitions to a separate information route. Do not therefore use its result as approval of a clause on a business transfer. Give the adviser the transaction type, activities and relevant market context. Where specialist doubt arises, ask who will perform that analysis before applying or ignoring the provision.

5. Assess the penalty’s basis and facts

Ask the other party which act it says constitutes a breach and which provision it invokes. List the alleged dates and amounts. A clause specifying a sum per day can produce a different calculation from a sum per act. Also have its relationship with other requested measures assessed. Do not acknowledge the calculation simply because the agreement contains a penalty provision.

Keep quotations, assignment descriptions and messages explaining what actually happened. Distinguish active solicitation, responding to a request and actual performance, without assuming in advance that any one of them is always permitted. In a dispute, the definition of the prohibited act may make the difference. Match your response to the specific allegation.

6. Seek advice or a defined solution early

Where you know of a serious clause, preferably submit a new activity for advice before starting. Ask whether a written exception or clear boundary can be discussed. Describe the work and relationships covered by the proposal and how long it should apply. A vague oral reassurance may later create another dispute about precisely what was permitted.

If a formal demand arrives while an assignment is already under way, report the next performance date and the interests of affected customers. Ask what short-term response is needed and what further investigation can follow. This page does not predict that a court will limit or disapply the clause. The desired interim or final measure must be chosen for the specific facts and basis.

7. Fictional example: seller starts related services

Suppose an entrepreneur sells a consultancy and then wants to start a smaller business for a related target group. The sale contract prohibits certain competing activities in a defined area. The buyer considers online services covered too. This example is fictional and gives no judgment on the interpretation or validity of any real non-compete.

Preparation includes the complete sale documents, the original services and the developed plan for the new business. The lawyer compares the wording, formation and actual activities and examines relevant legal boundaries. Focused negotiation on scope or a response can then follow. Merely saying the new business is smaller does not adequately answer those questions.

8. Checklist for business-restraint advice

Say immediately whether you seek clarity in advance or already face a claim. Report your intended start date, any formal demand and penalty calculation. Ask the lawyer first to assess contractual context, scope and the urgent next step. Discuss additional expertise if employment classification or competition plays an important role.

• Complete agreements with schedules, amendments and personal capacities.
• Negotiation correspondence and explanations of duration, territory and activities.
• Description of existing and intended work and affected relationships.
• The specific allegation, relevant dates and any penalty calculation.
• Your desired solution and next practical or procedural deadline.