The Non-Compete Clause and the Right to Work  

By Cristian Martea, Cooperate Legal Services, Lda.

The stipulation of non-compete clauses within service provision contracts, particularly following the termination of the respective contractual ties, is certainly not a novelty in our legal system. Equally relevant in Portuguese jurisprudence is the conflict caused by non-compete clauses with the freedom to choose one's work, which is constitutionally provided for in Articles 58 and 59 of the Fundamental Law.

When we are within the scope of labour law, the problem is resolved by Article 136(2) of the Labour Code, which establishes very specific requirements for cases in which a non-compete agreement is permitted; this always constitutes an exception to the general prohibition on limiting the freedom of work after the termination of the employment link. Thus, the limitation of the freedom of work is lawful "for a maximum period of two years following the termination of the employment contract, under the following conditions:

a) It must be contained in a written agreement, namely in an employment contract or its termination;



b) It must concern an activity the exercise of which may cause injury to the employer...continues in the PDF...