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I'm from non-EU country and I'm getting a new permanent job in the Germany right now. The contract has the next paragraph:

§ 18 Post-Contractual Non-Competition/Contractual Penalty

(1) For a period of 3 months after termination, the Employee is prohibited from acting in an independent, dependent or other manner for a company that is in direct or indirect competition with the Employer or is affiliated with a competing company. in the same way, the Employer is prohibited from establishing, acquiring or directly or indirectly participating in such a company for the duration of this prohibition.

(2) For the duration of the prohibition, the Employer shall pay compensation equal to half of the last contractual remuneration received by the Employee for each year of the prohibition.

(3) Any other income shall be set-off against the compensation in accordance with §74c HGB (German Commercial Code). The Employee has to inform without being asked whether and to what extent he receives other income. The information must be substantiated.

(4) The post-contractual non-competition clause does not enter into force if the employment relationship has lasted less than one year or if the Employee have reached the regular age limit of the statutory pension insurance when leaving the company.

(5) Apart from that, the provisions of §§ 74 ff. HGB (German Commercial Code) shall apply.

(6) In the event of a breach of the post-contractual non-competition obligation, the Employee shall pay a contractual penalty amounting to one gross monthly salary. If the infringement consists of a capital participation in a competing company of the entering into a continuing obligation, the contractual penalty shall be triggered anew for each month in which the capital participation of the continuing obligation exists (continuing infringement). Multiple acts of infringement shall trigger separate contractual penalties, if necessary several times within one month. If, on the other hand, individual acts of infringement take place within a continuing penalty for the continuing infringement, they are included in the contractual penalty for the continuing infringement. If several contractual penalties are triggered, the total amount of the contractual penalties to be paid is limited to six times the gross monthly salary.

(7) Further claims for damages and other legal claims of the Employer remain unaffected.

Due to very vague phrase direct or indirect competition, I can assume the worst: that a lot of other companies in the industry could be considered as a competitors. So in the case of changing the position, there is a high chance I will need to stay 3 months unemployed. 3 months gross salary fee is not an option

I will get a Blue Card with this contract. EU Blue Card allows to search for a new job for 3 months (with notifying the authorities about quitting the current one). My question is, does the EU Blue Card allow to deliberately have a 3 month period between working contracts?

I'm considering the next scenario:

  1. Work at company A and have a Blue Card.

  2. Search for a job in another company B while working in company A.

  3. Sign the contract with company B, in which my employment begins at chosen quitting date + 3 month.

  4. Quit company A at chosen quitting date with signed new contract in my hands.

  5. Go to the migration office and notify them, that I quit Company A and I already have new contract with Company B.

Does the Blue Card regulation allows to do that?

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Get a lawyer.

That employer is skating on very, very thin ice. You can’t have a non-compete agreement in Germany at all without the employer paying reasonable compensation. What is reasonable is decided by courts, but half your last regular salary is not “reasonable”. Especially if this would endanger your status of being allowed to work in Germany.

If you were a non-German EU citizen, any non-compete agreement would be immediately invalid because it violates the right of free movement; how nonEU citizens are affected, I don’t know.

The rest of the agreement seems quite illegal to me. I would think that any good employment lawyer would love to take your case.

  • It seems strange that German citizens are protected worse than other EU citizens, but IIRC that is allowed by the EU. – MSalters Oct 28 at 14:01

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