The mere transfer of employees from one company to a competitor, even where it involves several employees and occurs within a short period of time, is not in itself sufficient to constitute unfair competition under Article 2598, no.3, of the Italian Civil Code. This was clarified by the Court of Velletri in its judgment of 21 April 2026, issued in a case with significant implications for the local business environment.
The key principle is that employee poaching is not unlawful, even where it concerns an entire workforce, unless an undue competitive advantage supported by a specific intent to harm is demonstrated. In particular, the Court held that the competitor’s conduct must be such that it cannot be justified, in light of professional fairness, except by presuming an intent to harm the organisation and to obtain an undue competitive advantage.
Such intent may also be established on presumptive basis, taking into account factors such as the manner in which the employees were transferred, their role within the corporate organization, the difficulty of replacing them, and the methods used to induce their departure. These elements must be specifically pleaded and strictly proven.
In the present case, the departure of several employees and the establishment of a competing company by those employees, together with one of its shareholders, do not fall within the scope of employee poaching, but rather constitute legitimate choices reflecting autonomous entrepreneurial initiative.
The decision therefore upholds the arguments of the defendants, represented by Professor Andrea Gemma, attorney at law, who emphasized the voluntary nature of the resignations and the lawfulness of the subsequent entrepreneurial initiative.
The judgment also addresses several additional relevant aspects: a mere reference to the risk of customer diversion is insufficient in the absence of specific evidence of the use of unfair or fraudulent means ; the use of non-confidential information does not constitute a breach of unfair competition rules; the proximity between business premises does not in itself indicate unlawful conduct; and damages must be proven and causally linked to specific acts of unlawful competition.
Finally, the Court places particular emphasis on balancing the protection of competition with economic freedoms. The freedom of entrepreneurial initiative and the right to seek more satisfactory employment may justify competitive conduct, provided that such conduct complies with principles of professional fairness.
In these terms, the Court of Velletri draws a clear distinction between lawful competition and unlawful competitive conduct: employee poaching constitutes unfair competition only where it is carried out through improper means and with the intent to dismantle the competitor’s organization in order to obtain an undue competitive advantage, an intent that must be supported by clear, consistent and rigorously proven evidence. Likewise, customer diversion is relevant only where it results from unfair conduct, as the mere effects of lawful competition are not sufficient.
