A breach of the duty of loyalty (Art. 2105 of the Italian Civil Code) occurs when an employee engages in acts intended to divert the employer’s customers to a competing business. Such unlawful conduct has a broader scope than the prohibition against unfair competition under Article 2598 of the Italian Civil Code and includes preparatory, informational, or organisational conduct capable of harming – even if only potentially – the company’s interests. The case stems from several injunctions issued by the Court of Tivoli against three physicians (one employee and two contractors) working at a healthcare facility, from whom the employer had demanded the return of certain payments and compensation for damages due to alleged acts of unfair competition. The Court had rejected the objections, while the Rome Court of Appeals, in partially reversing the decision, distinguished the employee’s position from that of the other two physicians, who were contractors at the healthcare facility. The Court found that the employee had breached the duty of loyalty under Article 2105 of the Italian Civil Code and ordered him to pay damages, while excluding liability for the two contractors due to insufficient grounds for joint liability. The employee then appealed to the Supreme Court. The Supreme Court upheld the damages award against the employee physician, who had diverted patients to a competing facility shortly before resigning. The Court reaffirmed that the duty of loyalty under Article 2105 of the Italian Civil Code, read together with the principles of fairness and good faith, is broader than the prohibition of unfair competition under Article 2598. This duty requires the employee to refrain from any conduct contrary to the employer’s interests, including conduct that is only potentially harmful. Consequently, a breach of the duty of loyalty includes not only acts of actual competition but also all preparatory, organisational, or informational conduct aimed at diverting customers, even if such conduct is intended to produce its effects after the termination of the employment relationship. The Court specified that what matters is that such acts were conceived, initiated, or carried out while the employment relationship was still formally in effect. Here, the Supreme Court upheld the Court of Appeals’ ruling, which focused on the employee’s conduct: he had contacted patients before termination, offering continued treatment at a competing facility. The Court also declared inadmissible the ground of appeal in which the employee argued that his resignation was justified by the non-payment of certain monthly wages, since the potential legitimacy of the resignation is not sufficient to justify a separate and distinct unlawful act – such as the poaching of clients – committed before the end of the employment relationship. The ruling thus reinforces the established legal precedent that engaging in competitive activity – through the poaching of clients – during the term of the employment relationship constitutes a breach of contract that justifies the employer’s claim for damages. Furthermore, the ruling reaffirms that an employee’s duty of loyalty extends beyond a mere prohibition against unfair competition and encompasses preparatory acts aimed at poaching clients carried out prior to the termination of the employment relationship. The Supreme Court held that contacting patients to transfer them to a competing facility during employment is unlawful, and that any justification for resignation does not affect the independent unlawfulness of the prior poaching.
2026 - Morri Rossetti
