What commercial interest should the restriction protect?
The starting point should be the contractor’s actual access rather than a standard clause. The client may need to protect:
A restriction should not merely make it difficult for the contractor to leave or earn a living. The weaker the link between its scope and a legitimate commercial interest, the harder it is to explain the clause as a rational allocation of risk between businesses.
Before imposing a broad ban, the parties should test whether the risk can be addressed through confidentiality, restrictions on using information, non-solicitation of specified customers or properly allocated intellectual property rights. Working for another company in the same broad industry does not necessarily threaten the client where the product, customer segment and role are different.
- customer relationships developed or managed by the contractor;
- pricing, margin, sales strategy or product roadmap information;
- its team, subcontractor network or commercial partners;
- technical solutions and processes not fully protected by copyright;
- a substantial investment in market or contractor development.
How should competing activity be defined?
“Any activity competitive with the client” is not an operational definition. The registered objects of a Polish company may be much broader than its actual business, and the parties may understand competition differently.
The agreement should identify:
Different contractors may justify different restrictions. A person with access to the strategy and key-account data may present a different risk from a supplier performing a narrow, segregated task.
- products or services regarded as competing;
- the relevant market or customer group;
- territory, where it matters to the sales model;
- protected customers, such as those served or learned about by the contractor during a defined period;
- prohibited roles, including providing services, operating a competing business, managing a competitor or actively soliciting customers;
- reasonable exclusions, such as a passive portfolio investment without influence over a competitor.
Is payment mandatory for a post-termination B2B non-compete?
The Polish Civil Code does not impose a general payment requirement for a post-termination non-compete in an ordinary services agreement between businesses. In one commercial dispute, the Polish Supreme Court accepted an unpaid restriction after considering the contractor’s independence, bargaining position and the commercial purpose of protecting information.
This does not make every unpaid clause safe. Its assessment depends on the whole agreement, the parties’ position, the length and breadth of the restriction and the interest being protected. Payment is a risk-management recommendation where the clause substantially excludes the contractor from their market. It may also make a narrower but genuinely workable restriction easier to negotiate.
Different mandatory rules may follow from the legal character of the arrangement. Polish law separately regulates post-termination restraints in commercial agency agreements. If a purported B2B engagement is in fact employment, the Labour Code requires a defined period and compensation for a post-employment restriction.
The classification risk is discussed in B2B contractor or employment relationship in Poland?.
How should duration and early release be addressed?
A restriction during the agreement is commonly linked to loyal performance. A post-termination restriction should run for a defined period from a clearly identified event, usually termination or expiry.
There is no single safe duration for every industry. The period should correspond to the time for which the relevant information, customer relationship or commercial advantage remains sensitive. A fast-moving technology market may justify a shorter period than a business with a multi-year sales cycle.
The contract should also state:
Without an exit mechanism, the parties may remain tied to a restriction that has lost its commercial purpose.
- whether the client may release the contractor from the restriction;
- when and how that notice must be given;
- whether release also ends any agreed payment;
- what happens if the agreement ends because of the client’s breach;
- whether the restriction ends if the client ceases the protected activity.
How can a contractual penalty secure the clause?
The obligation not to compete is non-monetary and may therefore be secured by a contractual penalty under Polish law. The drafting should explain what constitutes a separate breach: signing an agreement with a competitor, each month of performing services, soliciting an identified customer or another defined act.
The amount and calculation should reflect the importance of the protected interest. The contract should also state whether the client may claim damages exceeding the penalty; without such wording, recovery above the agreed amount is generally excluded.
A penalty cannot cure an uncertain restriction. If the prohibited conduct cannot be identified, a high figure mainly increases the dispute risk. A Polish court may also reduce a grossly excessive penalty. See Contractual penalties in Polish B2B agreements.
How does non-compete differ from confidentiality and non-solicitation?
Confidentiality prevents disclosure or use of protected information. Non-solicitation protects specified business relationships. A non-compete restricts the competing activity itself, even where misuse of a trade secret cannot be proved.
The mechanisms can operate together, but each should have its own definition, period and remedy. A broad non-compete is sometimes used to compensate for weak confidentiality wording. A better solution may be to identify protected information, access rules, return of materials and the prohibition on using customer data after termination.
The wider contract review is covered in B2B contract before signing: 10 clauses to check.
How the issue appears in practice
Hypothetical example: a three-year industry-wide restriction
A company selling software to restaurant chains engages a sales consultant as an independent business. Its template prohibits the consultant, for three years after termination, from providing any service to any IT business in Poland or elsewhere in the European Union. It does not distinguish products, customers or roles. No payment is offered, while each breach carries a PLN 300,000 penalty. After termination, the consultant is offered a sales role for a workforce-management system aimed at manufacturers. The former client treats the new supplier as a competitor because both companies develop software. The contractor says the product, customer base and market are entirely different. The generic clause provides no predictable answer, and the penalty becomes the centre of the dispute. A better arrangement would protect restaurant-sector software and the customers with whom the consultant actually worked. The restriction could be limited by product, customer group and a period reflecting the sales cycle, with the remaining risk covered by confidentiality and targeted non-solicitation. If the post-termination restraint materially limits the consultant’s earning capacity, the parties should consider payment. The penalty should be linked to a defined breach and the scale of the risk.
Matters to determine or verify before proceeding
- What specific commercial interest requires protection, and for how long does it remain sensitive?
- Which products, services, markets and customer groups are genuinely competitive?
- Which forms of the contractor’s involvement should be prohibited, and which should be excluded?
- Should the restriction apply only during the agreement or also after it ends?
- Could the arrangement be classified as employment or commercial agency?
- Does the extent of the restraint justify payment, and how should that payment operate?
- What constitutes a separate breach and how should the contractual penalty be calculated?
- When and how may the client release the contractor from the restriction?
Key issues at a glance
| Issue | Key information |
|---|---|
| Restriction during the agreement | It may support loyal performance but should still define the competing activity. |
| Post-termination restriction | It requires a defined duration and particularly careful limitation to the protected commercial interest. |
| Payment | It is not automatically required for an ordinary B2B services agreement, but may reduce risk where the restriction materially limits business activity. |
| Employment classification | Mandatory Labour Code rules may apply if the engagement is in fact employment, irrespective of its label. |
| Contractual penalty | It may secure a clearly defined breach; a grossly excessive amount can be reduced by a court. |
| Confidentiality and customers | Targeted confidentiality or non-solicitation may protect the relevant interest better than an industry-wide ban. |
Legal basis
- Act of 23 April 1964 — Polish Civil Code, in particular Articles 58, 65, 353¹, 471 and 483–484.
- Act of 23 April 1964 — Polish Civil Code, Articles 750 and 764⁶, where the arrangement is respectively a services or commercial agency agreement.
- Act of 26 June 1974 — Polish Labour Code, in particular Articles 22 and 101¹–101⁴, where the relationship is in fact employment.
This article provides general information and does not constitute legal advice for a specific matter. The appropriate solution depends on the facts, documents and business objective.
Summary
An effective B2B non-compete should be precise rather than maximal. The protected interest needs to be linked to a defined activity, market and period, with workable remedies and release rules. A post-termination restraint and any relationship that may be classified as something other than an ordinary services agreement require particular care.