LEXONOMICA 
Vol. 17, No. 1, pp. 59–78, June 2025  
 
https://doi.org/10.18690/lexonomica.17.1.59-78.2025 
CC-BY, text © Kerčmar, 2025 
This work is licensed under the Creative Commons Attribution 4.0 International License. 
This license allows reusers to distribute, remix, adapt, and build upon the material in any medium or 
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POST-CONTRACTUAL NON-COMPETE 
CLAUSE IN COMMERCIAL AGENCY 
CONTRACTS 
  
Accepted  
5. 5. 2025 
 
Revised 
19. 6. 2025 
 
Published 
30. 6. 2025 
SEBASTJAN KERČMAR 
Dr. Kerčmar & Partners Law Firm, Nova Gorica, Slovenia,  
sebastjan@odvetnik-kercmar.si 
 
CORRESPONDING AUTHOR 
sebastjan@odvetnik-kercmar.si 
 
Keywords 
commercial agent,  
indemnity,  
commission,  
post-contractual non-
compete clause,  
monthly compensation 
for post-contractual non-
compete clause,  
Directive 86/653/EEC 
Abstract This paper deals with the legal regime governing 
post-contractual non-compete clauses in commercial agency 
contracts, analysing Slovenian legislation and its compliance 
with Directive 86/653/EEC. The Slovenian Obligations Code 
(OZ) requires the mandatory payment of compensation for 
compliance with a non-compete clause only in cases where the 
contract is terminated for reasons attributable to the principal. 
The author stresses that such a regime may lead to a restriction 
of contractual freedom without adequate compensation, which 
is not in line with the spirit of the Directive. Based on a review 
of the regimes in respect of non-compete clauses after the 
termination of a commercial agency contract in various 
European countries, including Croatia, the author finds that 
the regimes vary considerably between countries. The paper 
also focuses on the impact of non-compete clauses on 
indemnity, as the OZ requires such clauses to be taken into 
consideration in determining the amount. The author draws 
attention to the need for a fair balance of interests and for 
legislation to be revised to ensure that agents are protected 
against disproportionate restrictions without adequate 
compensation. 
 
60 LEXONOMICA.   
 
 
1 Introduction 
 
One of the most important provisions of the legal regime governing commercial 
agents is certainly the provision on indemnity. Likewise, the most important 
provision of the Commercial Agents Directive1 is undoubtedly its Article 17, which 
provides that upon termination of an agency contract, a commercial agent is entitled 
to an indemnity under the ‘German model’ (Article 17(2) of the Commercial Agents 
Directive) or compensation for damages resulting from the termination of the 
contract (compensation for clientele) under the ‘French model’ (Article 17(3) of the 
Commercial Agents Directive).2  
The Commercial Agents Directive was one of the first attempts to harmonise the 
legal frameworks of private law in the Member States (McKendrick, 2006, 
Engelmann, 2017). The aim of the Commercial Agents Directive is the 
approximation of Member States' rules governing commercial agency to the extent 
required for the proper functioning of the common market, in order in particular to 
ensure a minimum level of social protection for commercial agents, to ensure the 
security of commercial transactions, and to remove obstacles to cross-border 
commercial agency arrangements.3 
This paper also focuses on the highly important topic of restriction of the 
contractual freedom of commercial agents after the termination of their contractual 
relationship with a principal, i.e. on post-contractual non-compete clauses in 
commercial agency contracts, which in the Slovenian legal regime also deviates from 
comparative foreign legal regimes and affects the determination of the commercial 
agent’s indemnity as well as the commercial agent’s contractual freedom after the 
termination of his contractual relationship with the principal. 
 
2 Post-contractual non-compete clauses 
 
 
1 Commercial Agents Directive, OJ L 382, 31.12.1986. The abbreviated title Commercial Agents Directive is the 
most common and customary among international authors: e.g. Jan Engleman (Engelmann, 2017), Till Fock (Fock, 
2001) and numerous others, and is also used by Patricija Rot (Rot, 2016), while Friedl uses the abbreviated title EU 
Agents Directive (Friedl, 2018).  
2 See Judgement of March 23, 2006, Honyvem Informazioni Commerciali, C-465/04, para. 20, Evaluation of the 
Council Directive on the coordination of the laws of the Member States relating to self-employed commercial agents 
(Directive 86/653/EEC)/REFIT Evaluation of 16 July 2015, 9-10. 
3 See the Opinion of Advocate General L. A. Geelhold in C-3/04, Poseidon Chartering, para. 25. 
S. Kerčmar: Post-Contractual Non-Compete Clause in Commercial Agency Contracts 
61. 
 
 
A non-compete clause is valid only if and to the extent that it is made in writing and 
relates to the geographical area or to the group of customers in the geographical area 
entrusted to the commercial agent and to the kind of goods covered by his agency 
under the contract, subject to such a non-compete clause being effective for no more 
than two years after the termination of the agency contract.4 However, the 
Commercial Agents Directive leaves it to national laws to impose other restrictions 
on the validity or application of non-compete clauses or to provide for the possibility 
for courts to reduce the obligations of the parties arising from such an agreement.5 
In international trade, where Slovenian law may be applicable, it is important to be 
aware of what a commercial agent and principal should expect after the termination 
of their contractual relationship, including potential non-compete obligations, both 
in terms of the legal regime and in terms of potential alternative contractual 
arrangements of their relationship.  
For the sake of convenience, the provision of Article 836 of the OZ,6 which 
regulates this aspect in the Slovenian legal system, is quoted below:  
 
(1) A contract may provide that the agent may not, after the termination of the contract, carry on 
any activity that would compete with that of the principal. 
(2) Such a provision is valid only if made in writing and if it relates to the same geographical area, 
the same persons and the same goods as set out in the contract. 
(3) Where the contract was terminated for reasons attributable to the principal, such a provision is 
binding on the agent only if the principal pays the agent an appropriate indemnity upon termination 
and appropriate monthly compensation for the effective period of the non-compete clause in an amount 
equal to the average monthly commissions earned in the last five years of the contract or throughout 
the duration of the contract if it was effective for less than five years. 
(4) Such a provision is binding on the agent for a maximum of two years after the termination of 
the contract. 
(5) If the contract was terminated by the agent on the grounds of misconduct by the principal and a 
post-contractual non-compete clause was agreed in the contract, the agent may, by written statement, 
notify the principal no later than one month after termination that he will not comply with the non-
compete clause. 
 
4 Article 20(2) and (3) of the Commercial Agents Directive. 
5 Article 20(4) of the Commercial Agents Directive. 
6 Obligations Code Obligacijski zakonik, Official Gazette of the Republic of Slovenia Nos. 97/07 – official 
consolidated text, 64/16 – Constitutional Court decision, and 20/18 – OROZ631 (hereinafter referred to as the 
“OZ”). 
62 LEXONOMICA.   
 
 
(6) The provisions of this article may not be varied by contract to the detriment of the agent. 
 
The Slovenian legislature opted for a narrower approach, one more favourable to 
the commercial agent, i.e. applicability to the customers in the geographical area 
entrusted to the commercial agent and, in parallel, to the kind of goods covered by 
his agency under the contract.  In addition, in cases where the contract was 
terminated for reasons attributable to the principal, such a provision is binding on 
the agent only if the principal pays the agent an appropriate indemnity upon 
termination and appropriate monthly compensation for the effective period of the 
non-compete clause in an amount equal to the average monthly commissions earned 
in the last five years of the contract or throughout the term of the contract if it was 
effective for less than five years. Furthermore, in cases where the contract was 
terminated by the agent on the grounds of misconduct by the principal and a post-
contractual non-compete clause was agreed in the contract, the agent may, by written 
statement, notify the principal no later than one month after termination that he will 
not comply with the non-compete clause. All of the above constitute additional 
restrictions under Slovenian law in favour of the commercial agent. On the other 
hand, and in particular in the light of the position taken in the commentary to the 
OZ (Zabel in Plavšak, 2004: 533, Zabel in Plavšak, 2021: Section 25.21.3.1.) a non-
compete clause may in certain cases be binding on a commercial agent without the 
commercial agent being compensated equitably, or even at all, which is certainly 
unfavourable for the commercial agent and may ultimately lead to non-compliance 
with the Commercial Agents Directive. 
However, it should be noted that Article 836(2) of the OZ is inconsistent in 
expressly referring only to goods, resulting in further confusion as well as undue 
differentiation between commercial agents. While the Commercial Agents Directive 
limits its scope to products,7 the OZ defines a commercial agent and a commercial 
agency contract much more broadly and does not limit its scope to products, but 
also applies to services.8 However, the OZ, like the Commercial Agents Directive, 
expressly limits the applicability of non-compete clauses to products.9 On the face 
of it, and applying a literal interpretation of Article 836(2) of the OZ a non-compete 
clause for services might be deemed unlawful. On the other hand, given the overall 
 
7 Article 1(2) of the Commercial Agents Directive. 
8 See Article 807 of the OZ. 
9 See Article 836(2) of the OZ. 
S. Kerčmar: Post-Contractual Non-Compete Clause in Commercial Agency Contracts 
63. 
 
 
legal regime for commercial agents, this provision could be expanded to apply 
analogously to services. However, such an expansion of the statutory provision 
might be considered to be to the detriment of commercial agents dealing with 
services, who are excluded from non-compete clauses under the present literal 
interpretation. Therefore, we do not consider it appropriate to apply the non-
compete clause by analogy also to services. Moreover, the Commercial Agents 
Directive does not make non-compete clauses mandatory, but merely allows them 
to be regulated by member states, and only to the extent allowed by the Commercial 
Agents Directive.10 This, however, may give rise to the further issue of the 
constitutionality of such differentiation between commercial agents and ultimately 
the constitutionality of such non-compete clauses. 
 
2.1 Restriction of contractual freedom without payment of adequate 
compensation 
 
It follows in particular from the provision of Article 836(3) of the OZ that in certain 
cases the law also allows a non-compete clause, subject to the quoted conditions of 
Article 836(1) and (2) of the OZ, that is binding on the commercial agent without 
any compensation being agreed for the commercial agent’s compliance with the non-
compete clause. The OZ provides for the mandatory balancing of interests only in 
cases where a contract is terminated for reasons attributable to the principal. In 
addition, in cases where the contract is terminated by the agent on the grounds of 
misconduct by the principal, the commercial agent may, by written statement, notify 
the principal no later than one month after termination that he will not comply with 
the non-compete clause (Article 836(5) of the OZ). If the agent fails to deliver such 
a statement within one month, he is, according to Article 836(3) of the OZ, 
nevertheless not bound by the non-compete clause if the principal fails to pay him 
an adequate monthly compensation or does not pay him an adequate indemnity 
upon termination of the contract. 
In view of the interpretation given by the commentary to the OZ, namely that 
ordinary termination of the contract by the principal cannot be considered to be 
within the statutory scope of termination for reasons attributable to the principal 
(Zabel in Plavšak, 2004: 533, Zabel in Plavšak, 2021: Section 25.21.3.1.), the non-
compete clause will therefore apply even in the absence of any compensation for the 
 
10 See Article 20 of the Commercial Agents Directive. 
64 LEXONOMICA.   
 
 
agent in all other cases, for instance in the case of the expiry of the term of the 
contractual relationship, ordinary termination of the contract by either party, or 
termination of the contract for reasons attributable to the commercial agent.  
Even with the regularly agreed expiry of the contractual relationship, a post-
contractual non-compete clause in the absence of adequate compensation may be 
unfair and detrimental to the commercial agent. This is all the more true in cases 
where the principal terminates the commercial agency contract without serious 
reasons attributable to the commercial agent. Article 832 of the OZ refers to serious 
reasons justifying the termination of a contract without notice, while Article 836(3) 
of the OZ refers only to reasons attributable to the principal. In our view, the 
ordinary termination of a commercial agency contract by the principal could in itself 
be regarded as a reason attributable to the principal that led to the termination of 
the commercial agency contract.11 Furthermore, even if the principal were obliged 
to compensate the commercial agent for compliance with a non-compete clause in 
cases of ordinary termination of a commercial agency contract by the principal, there 
are still other cases of termination of commercial agency contracts where, if no 
compensation is agreed or the agreed compensation is inadequate, the terms are 
detrimental to the agent. At the very least, this is the case where a contract terminates 
at the end of the contractually agreed term.  
The Supreme Court of the Republic of Slovenia gave its view on this issue in 2001, 
finding that such non-compete clauses in the absence of any agreed compensation 
are permissible. The Supreme Court held that such a restriction on the constitutional 
right to free choice of employment and freedom to conduct a business is permissible 
because those rights are limited by the rights of another as provided for in the 
Constitution of the Republic of Slovenia12 and the law (Article 15(3) of the 
Constitution). Specifically, the Constitution prohibits acts of unfair competition 
(Article 74(3) of the Constitution), which includes conduct in violation of a non-
compete clause. The Supreme Court further held that in the case of an agency 
contract, i.e. a contract between equal parties, if no compensation is agreed, then it 
is of no legal relevance and any discussion of its amount has no legal effect.13 
 
11 See also Ljubljana Higher Court, no. I Cpg 74/2024 of October 21, 2024.  
12 Constitution of the Republic of Slovenia Ustava Republike Slovenije, Official Gazette of the Republic of 
Slovenia Nos.33/91-I, 42/97 – UZS68, 66/00 – UZ80, 24/03 – UZ3a, 47, 68, 69/04 – UZ14, 69/04 – UZ43, 
69/04 – UZ50, 68/06 – UZ121,140,143, 47/13 – UZ148, 47/13 – UZ90,97,99, 75/16 – UZ70a in 92/21 – UZ62a 
(hereinafter referred to as the “Constitution”). 
13 Supreme Court of the Republic of Slovenia, no. II Ips 565/2000 of June 14, 2001.  
S. Kerčmar: Post-Contractual Non-Compete Clause in Commercial Agency Contracts 
65. 
 
 
Although the judgment was delivered before the entry into force of the OZ, it can 
be deemed to apply mutatis mutandis, yet it could potentially be problematic in certain 
cases in the light of the Commercial Agents Directive. Nevertheless, the general 
provisions of the OZ, in particular the principles of conscientiousness and fairness, 
the principle of equality and other principles, might remain available to the 
potentially injured party, although it is a fact that the Slovenian legislature has 
expressly provided that any non-compete clause should be taken into consideration 
in determining the indemnity.  
 
2.2 Comparative regimes  
 
While the Commercial Agents Directive does not provide a direct answer to the 
question of whether a commercial agent may be bound by a non-compete clause 
after the termination of his contractual relationship with the principal, in particular 
for reasons that are not attributable to the commercial agent, in the absence of 
(adequate) compensation, the very purpose of the Commercial Agents Directive 
might lead to the conclusion that such a situation cannot be permissible per se, and 
not in all cases.  
Contrary to the Slovenian legislature, the Austrian legislature decided that any 
agreement under which a commercial agent would be restricted in his work after the 
termination of his contractual relationship with a principal is invalid (Article 25 of 
the HVertrG).14  
Germany takes a slightly different approach to the regulation of post-contractual 
non-compete clauses. They must be in writing and limited to no more than two years 
after the termination of the commercial agency contract and may apply only to the 
geographical area or customer base in or with which the commercial agent worked 
and, in both cases, only to goods and services in respect of which the commercial 
agent acted or transacted business on behalf of the principal, with the principal being 
required to pay the commercial agent reasonable compensation for the duration of 
the non-compete clause. The principal may waive the non-compete clause up until 
the termination of the contract, to the effect that, after the expiry of a six-month 
period following such waiver, the principal is released from the obligation to pay 
compensation. Where either party terminates the contract for serious reasons due to 
 
14 Bundesgesetz über die Rechtsverhältnisse der selbständigen Handelsvertreter of February 11, 1993, BGBl. Nr. 88/1993, with 
last amendments of June 2, 2016, BGBl. I Nr. 29/2016 (hereinafter referred to as: the “HVertrG”). 
66 LEXONOMICA.   
 
 
misconduct by the other party, such party may declare not to be bound by the non-
compete clause by means of a written statement within one month of such 
termination (Article 90a(1), (2) and (3) of the HGB).15 Divergent agreements to the 
detriment of the commercial agent are not permitted (Article 90a(4) of the HGB). 
In all cases where a non-compete clause is or remains in effect, the German regime 
therefore imposes an obligation on the principal to pay the agent reasonable 
compensation for the duration of the non-compete clause.  
Denmark has implemented the provision of Article 20 of the Commercial Agents 
Directive in its law, with the agent not being entitled to any compensation for 
accepting a post-contractual non-compete clause. However, in accordance with 
Article 36 of the Danish general act governing contracts,16 a non-compete clause 
may be declared invalid if and to the extent that the party bound by it would be 
unreasonably restricted in the exercise of his profession and/or the restriction goes 
beyond what is necessary to protect the beneficiary from competition (Gregersen, 
2022: 8). 
As of June 1, 2000, the Italian Civil Code17 provides for the payment of 
compensation for compliance with a post-contractual non-compete clause, which 
does not apply to contracts executed before that date. However, the Court of 
Cassation has also taken the view in recent decisions that the parties remain free to 
contractually derogate from such a statutory provision, since the provision is not 
mandatory and does not provide that a contract is null and void if such 
compensation is excluded, nor is there any general public interest to be protected by 
the statutory provision (Bortolotti and Bortolotti, 2022: 11-13).18 
In Croatian law, this topic is regulated in Article 834 of the ZOO.19 Prior to that, 
both Slovenia and Croatia, each with its own amendments, applied the 
1978 Obligations Act,20 which did not contain such or a similar provision in the 
 
15 Handelsgesetzbuch of May 10, 1897, BGBl. Nr. III. 4100-1, with last amendments of December 27, 2024, BGBl. 
2024 I Nr. 438 (hereinafter referred to as: the “HGB”). 
16 Bekendtgørelse af lov om aftaler og andre retshandler på formuerettens område of August 26, 1996, Act No. 781 with last 
amendments of December 15, 2015, Act No. 1565. 
17 Codice Civile, approved by Royal Decree of March 16,1942, No. 262, and as amended by Decree of December, 7, 
2016, No. 291. 
18 Referring to Judgement of the Italian Supreme Court Corte Suprema di Cassazione, of June 11, 2015, No. 12127, 
Judgement of August 22, 2016, No. 17239, and Judgement of May 31, 2017, No. 13796. 
19 Civil Obligations Act Zakon o obveznim odnosima, Official Gazette, no. 35/05, 41/08, 125/11, 78/15, 29/18, 
126/21, 114/22, 156/22, 155/23 (hereinafter referred to as: the “ZOO”). 
20 Obligations Act Zakon o obligacijskih razmerjih, Official Gazette of the Socialist Federal Republic of Yugoslavia 
Nos. 29/78, 39/85, 45/89 – Constitutional Court decision, and 57/89.  
S. Kerčmar: Post-Contractual Non-Compete Clause in Commercial Agency Contracts 
67. 
 
 
context of the regulation of commercial agency contracts.  Croatia regulates non-
compete clauses in Article 834 of the ZOO in a similar manner to the OZ, with 
minor derogations. The OZ makes the validity of a non-compete clause conditional 
upon it being in writing and applying to the same geographical area, the same persons 
and the same goods as set out in the contract,21 meaning that all these conditions 
must be satisfied cumulatively (Zabel in Plavšak, 2004: 532). In Croatia, however, in 
addition to written form, validity is subject only to the satisfaction of any of the other 
three conditions, i.e. same geographical area, same persons or same goods.22 The 
ZOO allows for a broader range of contractual arrangements regarding non-
compete clauses, which could certainly be to the detriment of the commercial agent 
and contrary to the provisions of the Commercial Agents Directive, which only 
allows national laws to impose additional restrictions on the validity or application 
of non-compete clause, but not to expand them in any way.23 Like the Slovenian 
OZ, the ZOO makes it possible for a commercial agent to be left without 
compensation or to be inadequately compensated in certain cases, including the 
expiry of a fixed-term contract, even if the agent is bound by a non-compete clause.  
The regimes, therefore, clearly vary considerably. From the Austrian regime, which 
strictly prohibits any post-contractual non-compete clauses without exception, to 
the German regime, which requires reasonable compensation for compliance with a 
post-contractual non-compete clause, to the Italian regime, which, despite the 
different statutory regime, allows for contractual agreements for a non-compete 
clause in the absence of compensation, the Danish regime, which does not provide 
for the payment of compensation for compliance with a non-compete clause and 
limits such agreements to the general provisions of contract law, and the Slovenian 
and Croatian regimes, which require, on a mandatory basis, the payment of 
compensation for compliance with a post-contractual non-compete clause in certain 
cases of termination of the contractual relationship as provided by the law. In 
contrast to the Italian regime, where the parties may contractually exclude the 
statutory compensation for compliance with a non-compete clause, Slovenian and 
Croatian law do not provide for such a possibility, as the provisions requiring the 
payment of compensation are mandatory and cannot be varied to the detriment of 
the commercial agent. 
 
21 Article 836(2) of the OZ. 
22 Article 834(2) of the ZOO: “Such a contractual provision will be valid if it is in writing and if it applies to the same geographical 
area, the same persons or the same goods as the commercial agency contract.” 
23 Article 20(4) of the Commercial Agents Directive. 
68 LEXONOMICA.   
 
 
  
3  Impact of a non-compete clause on indemnity 
 
The Slovenian regime in Article 833 of the OZ which regulates indemnity, deviates 
significantly, whether intentionally or unintentionally, from comparable regimes, 
including the Croatian regime; as this has already been the subject of much writing 
(Kerčmar, 2024a, Kerčmar, 2024b, Kerčmar in Repas, 2024: 123-158), we will only 
briefly discuss these differences below in order to facilitate the understanding of the 
impact of a post-contractual non-compete clause on the indemnity.  
 
3.1 Commercial agent’s indemnity 
 
A commercial agent is entitled to an indemnity if and to the extent that the agent 
has acquired new customers for the principal or significantly increased the principal’s 
volume of business with existing customers and the principal continues to derive 
substantial benefits from business with such customers and the payment of such 
compensation is equitable having regard to all the circumstances and, in particular, 
the commission lost by the commercial agent on the business transacted with such 
customers. However, member states may provide for these circumstances to also 
include the application or non-application of a restraint of trade clause in accordance 
with Article 20 of the Commercial Agents Directive,24 which defines a restraint of 
trade clause as an agreement restricting the business activities of a commercial agent 
following termination of the agency contract.  A restraint of trade clause is valid only 
if and to the extent that it is made in writing and relates to the geographical area, or 
the group of customers and the geographical area entrusted to the commercial agent 
and to the kind of goods covered by his agency under the contract, and may be valid 
for no more than two years after the termination of the agency contract.25 
Both the Slovenian26 and the Croatian regime27 provide that in determining the 
amount of the indemnity, due account must be taken of the commission received by 
the commercial agent for contracts executed after the termination of his relationship 
with the principal and of any non-compete clause applicable after the termination of 
 
24 Article 17(2)(a) of the Commercial Agents Directive. 
25 Article 20(2) and (3) of the Commercial Agents Directive. 
26 Article 833(2) of the OZ. 
27 Article 830(3) of the ZOO. 
S. Kerčmar: Post-Contractual Non-Compete Clause in Commercial Agency Contracts 
69. 
 
 
the relationship with the principal.  The comparative German28 and Austrian laws29 
do not specifically mention the commission received by the agent for contracts 
executed after the termination of his relationship with the principal, nor any non-
compete clause applicable after the termination of his relationship with the principal. 
The Italian30 and Danish31 regimes discussed in this paper contain no such express 
provision either. 
In order to facilitate the understanding of the regime for the commercial agent’s 
indemnity and the issue discussed in this paper, Article 833 of the OZ is quoted 
below:  
(1) Upon termination of a contract, an agent is entitled to an appropriate 
indemnity if and to the extent that the agent acquired new customers for 
the principal or significantly increased the principal’s volume of business 
with existing customers and the principal continues to derive substantial 
benefits from such customers after the termination of the contract, or if an 
indemnity is necessitated by special circumstances, in particular by the loss 
of commissions on business with such customers. 
(2) In determining the amount of the indemnity, due account shall also be taken 
of the commission received by the agent for contracts executed after the 
termination of the relationship with the principal and of any non-compete 
clause applicable after the termination of the relationship with the principal. 
(3) The amount of the indemnity under paragraphs 1 and 2 of this Article 
cannot exceed the average annual commission over the last five years or a 
corresponding shorter period from the execution of the contract. 
(4) Where a fixed-term contract is terminated before the expiry of its term, or 
where an indefinite-term contract is terminated before the expiry of a period 
of five years from the date of its execution, an agent is entitled to an 
appropriate indemnity equal to the difference between the costs incurred by 
the agent in bringing the product to market and any other costs incurred by 
the agent in connection with the performance of the contract, and the 
income received by the agent through the performance of the contract and 
the income that would likely have been received by the agent until, in the 
 
28 Article 89b of the HGB.  
29 Article 24 of the HVertrG. 
30 Article 25 and 26 of the Danish Act on Commercial Agents (Lov om handelsagenter og handelsrejsende of May 2, 1990, 
Act no. 272). 
31 Article 1751 of Italian Civil Code.  
70 LEXONOMICA.   
 
 
case of a fixed-term contract, the expiry of its term or, in the case of an 
indefinite-term contract, the expiry of a period of five years from its 
execution. 
(5) An agent is entitled to an indemnity under the preceding paragraph even if 
he is not entitled to an indemnity under paragraph 1 of this Article, as well 
as if the appropriate indemnity under paragraph 1 of this Article would be 
lower than the appropriate indemnity under the preceding paragraph. 
(6) The payment of an indemnity does not preclude an agent’s right to 
compensation for damages. 
 
The ZOO was adopted four years after the adoption of the Slovenian OZ, it being 
clear from the structure and substance of the provisions governing commercial 
agency contracts that the Croatian legislature drew upon Slovenian laws. However, 
the Slovenian legislative inconsistency in Article 833(1) of the OZ, which was most 
likely unintentional, was not replicated by the Croatian legislature in Article 830(1) 
of the ZOO.  Namely, there are already two different paths to severance pay under 
Article 833(1) of the OZ, and it appears based on the legislative drafting materials 
that the Slovenian legislature intended for paragraphs 1, 2 and 3 to implement the 
indemnity provided for in Article 17(2) of the Commercial Agents Directive, but fell 
short in achieving that goal. It follows from the text that the words ‘or if’, placed 
after the punctuation mark (comma), were clearly intended to denote an alternative, 
as discussed in Stabej’s opinion (Stabej, 2020), Rot’s master’s thesis (Rot, 2016) and 
the judgment of the Ljubljana Higher Court,32 most likely resulting from a 
misinterpretation of the wording of the Commercial Agents Directive (Kerčmar in 
Repas, 2024: 134-135) and the German regime as providing for entitlement to 
indemnity under each indent, or point, separated by the conjunction ‘and’, and not 
merely cumulatively subject to the satisfaction of all the indents, or points, connected 
by the conjunction ‘and’. This may be the most reasonable explanation as to why 
this anomaly in the Slovenian regime came to be; otherwise, attention would 
certainly have been drawn at the time of the adoption of the OZ, or after its 
adoption, to the fact that the indemnity regime under Article 833(1) in conjunction 
with Article 833(2) and (3) of the OZ deviates from the Commercial Agents 
Directive, as was pointed out, for instance, during the legislative process itself as well 
 
32 Ljubljana Higher Court, no. I Cpg 924/2016 of April 24, 2018, para. 19. 
S. Kerčmar: Post-Contractual Non-Compete Clause in Commercial Agency Contracts 
71. 
 
 
as in the first commentary to the law with regard to the indemnity regime under 
Article 833(4) and (5) (Kerčmar in Repas: 134-135).  
The ZOO likewise did not reproduce the second anomaly in the Slovenian regime 
under Article 833(4) and (5) of the OZ, introduced in Slovenian law by an 
amendment proposed by a deputy group33 in the second reading of the OZ, which 
newly added paragraphs 434 and 5 to Article 833 of the OZ. The legislature sought 
to provide an additional right in certain cases to commercial agents not entitled to 
an indemnity under paragraph 1.35 As further explained by the authors of the 
amendment, the new paragraph 536 sets out the relationship between the indemnity 
under paragraph 1 and the indemnity under paragraph 4 to make it clear that an 
agent cannot cumulate the two indemnities.  Therefore, as provided in Article 833(5) 
of the OZ, an agent is entitled to an indemnity under paragraph 5 even if he is not 
entitled to an indemnity under paragraph 1, as well as if the appropriate indemnity 
under paragraph 1 would be lower than the appropriate indemnity under 
paragraph 4. In particular, the use of the word “even” in the paragraph 5 may give 
rise to different interpretations (Kerčmar in Repas, 2024: 151). 
 
3.2 Impact of a post-contractual non-compete clause and impact of the 
commission received by the agent for contracts executed after the 
termination of the relationship with the principal 
 
In accordance with the provisions of Article 833(2) of the OZ, in determining the 
amount of the indemnity under Article 833(1) of the OZ, due account must also be 
taken of the commission received by the agent for contracts executed after the 
termination of the relationship with the principal and of any non-compete clause 
 
33 Amendment to Article 833 by Deputy Group (Potrč Miran) of June 28, 2001, EPA 1544. 
34 Where a fixed-term contract is terminated before the expiry of its term, or where an indefinite-term contract is 
terminated before the expiry of a period of five years from the date of its execution, an agent is entitled to an 
appropriate indemnity equal to the difference between the costs incurred by the agent in bringing the product to 
market and any other costs incurred by the agent in connection with the performance of the contract, and the 
income received by the agent through the performance of the contract and the income that would likely have been 
received by the agent until, in the case of a fixed-term contract, the expiry of its term or, in the case of an indefinite-
term contract, the expiry of a period of five years from its execution. 
35 Amendment to Article 833 by Deputy Group (Potrč Miran) of June 28, 2001, EPA 1544. 
36 An agent is entitled to an indemnity under the preceding paragraph even if he is not entitled to an indemnity 
under paragraph 1 of this Article, as well as if the appropriate indemnity under paragraph 1 of this Article would be 
lower than the appropriate indemnity under the preceding paragraph. 
72 LEXONOMICA.   
 
 
applicable after the termination of his relationship with the principal. A virtually 
identical provision is contained in Article 830(3) of the ZOO.  
The principle of equity is derived from the second indent of Article 17(2)(a) of the 
Commercial Agents Directive, which provides that the payment of that indemnity 
must be equitable having regard to all the circumstances and, in particular, the 
commission lost by the commercial agent on the business transacted with such 
customers. In the same indent, the Commercial Agents Directive also allows 
member states to provide for such circumstances to also include the application or 
non-application of a restraint of trade clause within the meaning of Article 20 of the 
Commercial Agents Directive. The Slovenian and Croatian legislatures decided to 
include any non-compete clause applicable after the termination of the relationship 
with the principal as a relevant circumstance, providing for that circumstance in 
Article 833(2) of the OZ and Article 830(3) of the ZOO, respectively, as one of the 
two circumstances37 to be duly taken into account.  
The Commercial Agents Directive and, inter alia, the German (Article 89b(2)(1) of 
the HGB) and Austrian (Article 24(1)(3) of the HVertrG) laws, only expressly 
mention, among an unspecified number of possible relevant circumstances, lost 
commissions from business transacted with customers who were acquired for the 
principal by the commercial agent or the principal’s volume of business with whom 
was significantly increased by the commercial agent. This is one of the circumstances 
assessed in the context of the principle of equity.38 No other circumstances are 
expressly mentioned.  
The commentary to the OZ states that the economic purpose of the indemnity is to 
balance the benefits and detriments and adds in this respect that the agent’s position 
will be more difficult if he is subject to a post-contractual non-compete clause (Zabel 
in Plavšak, 2004: 516, Zabel in Plavšak, 2021: Section 25.20.1.2.). In the event of 
early termination for reasons attributable to the principal, the principal is required to 
pay the agent an indemnity and, if a post-contractual non-compete clause is agreed, 
monthly compensation. As regards the relationship between the two, Zabel merely 
states that the function of each of the two forms of compensation must be taken 
into consideration (Zabel in Plavšak, 2004: 533, Zabel in Plavšak, 2021: Section 
25.21.3.1.). 
 
37 In addition to the commission received by the agent for contracts executed after the termination of the 
relationship with his principal. 
38 In Germany’s case since the amendment of the HGB in 2009 as a result of the Judgement of March 26, 2009, 
Semen, C-348/07, ECLI:EU:C:2009:195.  
S. Kerčmar: Post-Contractual Non-Compete Clause in Commercial Agency Contracts 
73. 
 
 
Given the explicit wording of the Slovenian law, any post-contractual non-compete 
clause should certainly be duly considered and taken into account in determining the 
amount of the indemnity, but a high degree of caution is required in this respect. 
The question arises as to how to take due account of a non-compete clause in 
determining the indemnity, this of course being relevant only in the case of 
indemnity under Article 833(1) of the OZ. This depends on a number of factors, 
which again need to be considered in a reasonable and appropriate manner in each 
specific situation. For instance, if a commercial agent is bound by a non-compete 
clause and, under Article 836(3) of the OZ, the principal is required to pay him 
appropriate monthly compensation for the entire period of the non-compete clause 
at a rate equal to the average monthly commissions for the last five years of the 
contract, or during the term of the contract, this does not imply per se that the 
commercial agent’s indemnity could be zero in such a case. Such a fact is to be 
assessed in the context of all the other circumstances relevant in determining the 
amount of the indemnity, in particular the duty to comply with the non-compete 
clause without compensation or subject to compensation whose amount is not 
equitable, being excessive or insufficient.  
If the compensation payable by the principal to the agent for compliance with a 
post-contractual non-compete clause is deemed appropriate, or balanced and 
equitable in terms of its amount given the circumstances, then such compensation 
should not in any case have any bearing on the assessment of the indemnity. Where 
it would be inequitable and unbalanced for the agent not to receive compensation, 
or where the amount of such compensation is inequitable, this should be taken into 
consideration in determining the amount of the indemnity and the indemnity should 
be adjusted downwards or upwards accordingly.   
Following such an interpretation, the non-compete regime would certainly be more 
balanced as a whole.  
Nevertheless, there may be situations where a commercial agent would not be 
entitled to an indemnity or where the indemnity itself would not be able to 
adequately take into account the commercial agent’s disadvantage due to the post-
contractual non-compete clause. However, if the conditions prescribed by law are 
satisfied, the general provisions of the law of obligations,39 which allow for the 
 
39 E.g. Article 8 of the OZ (Principle of Equal Value of Reciprocal Obligations), Article 118 of the OZ (Manifest 
Disproportion Between Reciprocal Obligations), Article 119 (Usurious Contract), etc. 
74 LEXONOMICA.   
 
 
rectification of potential imbalance between the contractual parties, remain available 
in such cases for any necessary correction.  
Attention should also be drawn in this regard to the other circumstance to be taken 
into account in accordance with the OZ in determining the amount of the indemnity, 
namely the commission received, or to be received, by the agent for contracts 
executed after the termination of his relationship with the principal, i.e. the 
commission resulting from the commercial agent’s work during his contractual 
relationship with the principal, which, in accordance with Article 823(4) of the OZ 
or Article 819(5) of the ZOO, is due to the agent in any case. The agent is entitled 
to such commissions as a result of his efforts and work up to the moment of 
termination of his contractual relationship with the principal, and not in any way as 
a result of the termination of his contractual relationship with the principal, it being 
unclear why this might have such a significant impact on the commercial agent’s 
right to indemnity as to be specifically mentioned in the law. The question, therefore, 
arises as to why any distinction should be made between commissions, all of which 
the agent is entitled to solely and entirely due to his efforts during his contractual 
relationship with the principal. Zabel argues that any commissions paid to the agent 
after the termination of the contractual relationship pursuant to Article 823(4) of the 
OZ must be deducted from the amount of indemnity to be paid by the principal 
(Zabel in Plavšak, 2004: 520, Zabel in Plavšak, 2021: Section 25.20.4.). It is our view 
that such an interpretation of this contractual provision is not appropriate in all 
situations. The underlying principle must be that the rights of the commercial agent 
must not be diminished and, conversely, that the agent must not be unjustly 
enriched. In our view, if the customers from whom the commercial agent received 
commissions after the termination of the contractual relationship in accordance with 
Article 823(4) of the OZ were not taken into account in determining the indemnity, 
more specifically in the estimation of the principal’s future benefits, such 
commissions should not be deducted from the indemnity, since the customers were 
not taken into account in the calculation of the future benefits of the principal on 
whose basis the commercial agent’s indemnity was determined.40 Unlike the OZ and 
the ZOO, the Commercial Agents Directive does not specifically mention these 
commissions in relation to indemnity.  
 
3.3 Comparative regimes  
 
40 Conversely, that such commissions should be deducted in all cases, e.g.: Küstner and Thume, 2014: 740.  
S. Kerčmar: Post-Contractual Non-Compete Clause in Commercial Agency Contracts 
75. 
 
 
 
Unlike the Slovenian and Croatian regimes, the other regimes discussed in this paper 
do not specifically include a non-compete clause applicable after the termination of 
the relationship with the principal among the relevant circumstances when 
determining indemnity. A post-contractual non-compete clause may also be taken 
into consideration as a circumstance in the assessment of equity, although it is not 
addressed in this context in the German legal system due to its different regime for 
non-compete clauses.  
German jurisprudence takes the view that any contractually agreed non-compete 
clause should not be included and does not affect the indemnity, as any 
disadvantages relating to the non-compete clause are compensated separately and 
on a different basis (Meier, in Herresthal, Henssler, Paschke, 2020: para. 89b of the 
HGB, recital no. 123, Emde, 2014, para. 89b of the HGB, recital no. 198, Balke and 
de Groot, 2010: 1551-1556). In Germany, a post-contractual non-compete clause, 
therefore, cannot be taken into account even in applying the principle of equity as 
regards indemnity. Moreover, the focus is entirely different, as the indemnity is based 
on the past activity of the commercial agent, whereas compensation for a non-
compete clause is based on future damages (Meier, in Herresthal, Henssler, Paschke, 
2020: para. 89b of the HGB, recitals no. 208-211). 
Belgian law, for instance, creates the legal presumption that the principal enjoys 
significant benefits in the case of a contractual non-compete clause. Of course, this 
presumption is rebuttable.41 In Austrian law, on the other hand, there can be no 
effect on the indemnity in any case, as any agreement under which the agent would 
be subject to a non-compete clause after the termination of his contractual 
relationship with the principal is null and void.42 
 
4 Conclusion  
 
In Germany, both jurisprudence and case law are indeed opposed to taking any non-
compete clause into consideration in determining the amount of indemnity. 
However, the situation in Slovenia is quite different, as the regime for post-
contractual non-compete clauses differs from the German regime. Namely, 
 
41 Article X.18(4), Book X, Chapter 1, of the Code of Economic Law Code de droit économique of March 29, 
2013, Moniteur belge no. 2013A11134. 
42 Article 25 of the HVertrG. 
76 LEXONOMICA.   
 
 
Slovenian law provides for the possibility of a commercial agent being bound by a 
post-contractual non-compete clause in certain cases despite not being entitled to 
compensation. In addition, the OZ expressly provides that due account is to be 
taken of any non-compete clause after the termination of the relationship with the 
principal in determining the severance payment.  
Therefore, unless this Slovenian regime is found to be incompatible with the 
Slovenian Constitution or the Commercial Agents Directive, in cases where a 
commercial agent is bound by a non-compete clause and is not compensated or 
receives compensation that is inequitable (excessive or inadequate) in the light of the 
circumstances, this will have to be taken into consideration in determining the 
indemnity. In any case, it is our view that the compensation should not simply be 
deducted from the indemnity due to the commercial agent.  
 
 
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Povzetek članka v slovenskem jeziku (abstract in Slovene language): 
Članek obravnava pravno ureditev konkurenčne klavzule po prenehanju pogodbe o 
trgovskem zastopanju, v okviru katere analizira slovensko zakonodajo in njeno 
skladnost z Direktivo 86/653/EGS. Slovenski Obligacijski zakonik (OZ) zahteva 
obvezno plačevanje odmene za spoštovanje konkurenčne klavzule zgolj v primerih, 
ko je pogodba prenehala zaradi razlogov na strani naročitelja. Po mnenju avtorja 
takšna ureditev lahko vodi v omejitev pogodbene svobode brez ustreznega plačila, 
kar ni v skladu z duhom direktive. Na podlagi pregleda ureditev konkurenčne 
klavzule po prenehanju pogodbe o trgovskem zastopanju v različnih evropskih 
državah, tudi na Hrvaškem, avtor ugotavlja, da se ureditev po posameznih državah 
zelo razlikuje. Avtor se osredotoča tudi na vpliv konkurenčne klavzule na 
odpravnino, saj OZ zahteva njeno upoštevanje pri določanju višine. Opozarja tudi 
na potrebo po pravičnem ravnotežju interesov in prilagoditvi zakonodaje, ki bi 
zagotavljala zaščito zastopnika pred nesorazmernimi omejitvami brez primernega 
nadomestila.