Nejvyšší soud k vydání prospěchu z konkurenčního jednání jednatele

The Supreme Court, in its recent ruling (judgment dated June 24, 2025, file no. 27 Cdo 127/2024), addressed the consequences of a managing director of a limited liability company violating the non-competition clause.

The non-competition clause serves to protect the business corporation, specifically its know-how, confidential information, or business contacts, from potential misuse by individuals whose interests conflict with those of the business corporation. The existing legal framework of the Commercial Corporations Act regulates this provision in a dispositive manner, meaning that the non-competition clause can be contractually limited or excluded. The law governs the non-competition clause for managing directors of limited liability companies as well as for members of the board of directors, supervisory boards, or administrative boards of joint-stock companies.

In the case under review, the plaintiff limited liability company (referred to as "A") sought from the defendant limited liability company (referred to as "B"), which operates in a similar line of business, the restitution of profit that the defendant B allegedly obtained as a result of violating the non-competition clause under Section 5 of the Commercial Corporations Act. The plaintiff A argued that the violation of the non-competition clause occurred because its managing director acted as a managing director of the defendant B without the consent of its shareholders. According to the applicable regulations prior to the amendment effective from January 2021, the consent of shareholders was required for approving competitive conduct.

The subject of this dispute was thus the question of whether a company in which the managing director performed his duties could also be sued for such a violation of the non-competition clause, i.e., whether the defendant B is passively legally entitled to be sued.

The Supreme Court agreed with the decisions of the lower courts, which concluded that the primary entity liable for violating the non-competition clause is the one who actually committed the violation, namely the subject to which competitive conduct is legally prohibited. The defendant did not violate the non-competition clause, and the plaintiff did not state that any profit or rights arising from this conduct were transferred to the defendant; thus, the defendant is not considered a recipient of such profit under Section 5(1) of the Commercial Corporations Act.

What follows from this? If a member of an elected body violates the non-competition clause, one of the claims that the business corporation, here A, can claim against the violator is the restitution of profit obtained under Section 5(1) of the Commercial Corporations Act. The violator must enrich themselves through their competitive conduct and obtain a profit. Such a profit typically includes remuneration or other benefits, such as obtained profit-based remuneration.

However, the business corporation (here B), in which the member of the elected body violated the non-competition clause by performing the role of a member of the statutory body, is not a violator and does not obtain any profit.

The Supreme Court further added that the business corporation (here A) has, in addition to the claims regulated by the Commercial Corporations Act, alternatively—not complementarily—the right to seek an injunction against the violation of the non-competition clause or compensation for damages, not only from the violator, i.e., the member of its elected body, but also from the person for whose favor  the non-competition clause was violated. These rules are derived from Section 432 of the Civil Code. Thus, under this alternatively applicable provision of the Civil Code, the defendant company B would be liable for the damage incurred.

Authors:
Klára Hurychová
Ondřej Havránek