Last August the Appeal Court of Bologna fully confirmed the judgment of the Court of First Instance of Rimini, which had sentenced two partners-directors of a company to compensate damages for having performed acts of unfair competition -in agreement between them- for enticement of employees and diversion of customers.
In particular, the Court, in line with the orientation now prevailing in case law, concluded that what led to the illegality of the conduct was not the passing of the employees to the com-petition, but the manner and the circumstances in which this specific transition occurred.
In fact, the mere circulation of employees from one company to a competing one cannot be, in itself, considered as an illegal activity, since their mobility represents one of the greatest expressions of constitutionally guaranteed principles such as, on the one hand, the right of the employee to improve his or her professional position and, on the other hand, the principle of freedom of economic initiative.
It, therefore, follows that, to be able to qualify the transfer of the employees as an unlawful conduct, a quid pluris is necessary. Such quid pluris is identified by case law in the legitimacy of the so-called animus nocendi, that is to say, in the offender’s awareness of the aptness of his act to damage the other company and in the precise intention of achieving this result. Moreover, in assessing the existence of that animus, one must take into account parameters such as the number of diverted employees, the timing between hirings and resignations, the position held within the company and, therefore, the importance of the tasks carried out, the experience and the knowledge regarding the relationships with the customers and the suppliers acquired by each employee, and so on.
Actually – despite the effort to determine the criteria apt at identifying the circum-stances under which the soliciting of employees and the diversion of customers are unlawful- the boundary between a conduct which establishes a possible liability and a lawful conduct (a mere expression of the principle of free circulation of workers) still seems very labile.
The lability of the boundaries of “unfair competition” is also ap-parent in another respect.
If, in fact, the tranfer of employees and the di-version of customers were to be considered as acts of disposition of the assets, in abstract terms they could also qualify as un-faithfulness on assets, as set forth by article 2634 of the Italian Civil Code.
So, whereas the intention is not that of “down-grading” workers from persons to assets, we might rightfully speak of “supply of company assets” even in the case of diversion of employees, given that, together with the passage of workers from one company to another, their professional experience migrates as well, resulting in the depletion of the so-called reversed company. From this perspective, em-ployees may be considered not as such, but as their value, their ability and their professional experience – terms that are part of goodwill which, clearly, falls within the so-called intangible assets of the company.
Finally, a similar con-clusion could also be drawn for the diversion of customers because, al-though it has been defined as a “mere expectation of recurrence of contractual relations”, it also represents an “un-expressed” value of the company and, as such, if diverted, can undermine the earning and competitive capacity of the enterprise.
(Trieste Office – Massimo Campailla – 0039(0)407600281)
