Non‑compete vs Non‑solicitation in Belgium (2026): Which Post‑employment Restriction Should Employers Use?

Belgian employers drafting or renewing employment contracts in 2026 face a sharper choice than ever between two post‑termination restrictions: the non‑compete clause, which bars an ex‑employee from working for a competitor entirely, and the non‑solicitation clause, which only prevents the departing worker from approaching former clients or colleagues. The decision between non‑compete vs non‑solicitation in Belgium has become more consequential since 1 January 2026, when updated salary thresholds changed which employees can be bound by enforceable non‑competes, and since the Belgian Competition Authority began actively sanctioning inter‑company “no‑hire” agreements as serious antitrust violations. Getting the choice wrong now costs more, in mandatory compensation, in regulatory fines, or in a clause that a court simply refuses to enforce.

Why the Distinction Matters: Understanding Both Options

A non‑compete and a non‑solicit clause serve different protective purposes, trigger different legal regimes, and carry different price tags. Before choosing, employers need to understand what each instrument actually does, and, critically, what it does not do.

A non‑compete clause prevents the former employee from engaging in similar professional activities, whether as an employee, freelancer, or business owner, within a defined geographic area and for a limited time after the employment relationship ends. It is the broadest form of post‑termination restriction Belgium permits, but it is also the most heavily regulated. The Belgian Employment Contracts Act imposes strict statutory conditions: the clause must be in writing, limited in geographic scope and business activity, capped at 12 months, and, most importantly, available only for employees whose gross annual remuneration exceeds a statutory threshold.

A non‑solicitation clause, by contrast, does not prevent the former employee from working for a competitor. It restricts a narrower set of behaviours: approaching the former employer’s clients (a client‑non‑solicit) or recruiting its staff (an employee‑no‑poach). Because the Belgian labour code does not regulate non‑solicitation clauses with the same prescriptive framework applied to non‑competes, they are governed primarily by general contract law and a reasonableness test. However, when a non‑solicitation or no‑hire clause is agreed between two competing employers rather than imposed on an individual employee, it enters competition‑law territory, and the Belgian Competition Authority has made clear since 2024 that such arrangements may constitute by‑object restrictions of competition, exposing the companies involved to substantial fines.

In short: these are not interchangeable tools. A non‑compete is expensive but comprehensive. A non‑solicit is lighter but narrower, and potentially catastrophic if structured as a horizontal agreement between firms. The sections below map each option in detail, then provide a concrete decision framework for choosing between them.

Option A: The Non‑compete Clause in Belgium, Conditions, Thresholds and Cost

The non‑compete in Belgium is a creature of statute. Articles 65 and 86 of the Employment Contracts Act of 3 July 1978 set out the conditions under which a post‑termination non‑compete clause is valid. Unless every condition is met, the clause is void, and the employer may still owe compensation for attempting to enforce it.

To be enforceable, the clause must satisfy all of the following requirements:

• Written form. The non‑compete must be recorded in a written document, the employment contract itself, an addendum, or a collective bargaining agreement (CBA), before or during the employment.
• Limited scope. The clause must specify the prohibited activities and restrict them to activities that genuinely compete with the employer’s business.
• Geographic limitation. The restricted area must not extend beyond the territory where the employer could actually suffer competitive harm, and in any event must not exceed Belgium’s national borders (unless the “deviation” non‑compete for senior managers applies).
• Maximum duration. The restriction may not exceed 12 months from the date of termination.
• Salary threshold. The employee’s gross annual remuneration must meet or exceed the applicable statutory threshold, a condition that eliminates the option for lower‑paid staff entirely.
• Compensation. The employer must pay the employee a lump‑sum indemnity as consideration for respecting the non‑compete.

Eligibility and Salary Thresholds (2026)

Belgium’s Federal Public Service Employment (FPS) publishes updated salary thresholds that determine whether a non‑compete clause is available at all. As of 1 January 2026, the threshold for the standard non‑compete is approximately €44,447 gross per year. Employees earning below this amount cannot, in principle, be bound by a post‑termination non‑compete. A second, higher threshold, approximately €88,893, governs the broader “deviation” non‑compete clause available for senior managers and employees with access to strategic or sensitive commercial information, which may extend the geographic scope beyond Belgian territory. Sector‑level CBAs may further restrict or adapt these thresholds. Employers must verify the exact amounts on the FPS Employment website at the time of drafting, as thresholds are indexed periodically.

Compensation for Non‑compete: What It Costs the Employer

Where the non‑compete is valid and the employer chooses to enforce it, a lump‑sum indemnity equal to at least 50 % of the employee’s gross salary for the duration of the restriction is typically required. For a 12‑month non‑compete, this means paying the equivalent of six months’ gross pay. Sector CBAs may set different minimums or formulas. The indemnity is generally subject to social security contributions and income tax, increasing the total employer cost. If the employer decides not to enforce the clause after termination, it must waive the non‑compete within 15 days of the last working day, failing which, the indemnity becomes payable even if the employer never actually invokes the restriction.

Option B: The Non‑solicitation Clause, What It Covers, and Where the Danger Lies

A non‑solicitation clause in Belgium takes two structurally different forms, and the legal consequences of each are worlds apart.

The first form is the employee‑facing client‑non‑solicit: a clause in the employment contract (or settlement agreement) that prohibits the departing employee from actively soliciting the former employer’s clients, suppliers, or, in some formulations, other employees. Because this type of clause does not prevent the employee from working in the same industry, it is less intrusive than a non‑compete and is not subject to the same statutory salary thresholds or mandatory compensation rules. Courts assess non‑solicit clause enforceability under general contract‑law principles: the restriction must be reasonable in scope and duration, clearly defined, and supported by a legitimate business interest. A well‑drafted client‑non‑solicit of 6–12 months, tied to clients the employee actually serviced, will generally survive judicial scrutiny.

The second form is the inter‑company no‑hire or no‑poach agreement: an arrangement between two or more employers, typically competitors, not to recruit each other’s staff. This is where the risk profile has changed dramatically since 2024.

Types of Non‑solicit Clauses

• Client‑non‑solicit (employee‑facing). Restricts the departing employee from approaching former clients. Enforceable if reasonable. No mandatory indemnity.
• Employee‑no‑poach (inter‑company). Two or more employers agree not to hire each other’s personnel. Increasingly treated as a competition‑law violation, not a legitimate employment tool.

Competition‑Law Danger Zone: No‑poach Agreements in Belgium

The Belgian Competition Authority (BCA) has taken an aggressive enforcement stance on non‑poach agreements in Belgium. In its 2024 enforcement actions, including a case involving the private security sector, the BCA sanctioned mutual no‑hire clauses between competing companies, treating them as by‑object restrictions of competition under Article IV.1 of the Belgian Code of Economic Law and Article 101 TFEU. The practical consequence: these agreements are presumed illegal. The companies involved face fines calculated as a percentage of turnover, and the agreements themselves are void and unenforceable.

Red flags that should stop any employer from proceeding without antitrust counsel:

• Any mutual agreement with a competitor, written or verbal, not to hire, recruit, or solicit each other’s staff.
• Industry‑wide “gentlemen’s agreements” or trade‑association protocols restricting lateral hiring.
• No‑hire clauses embedded in subcontracting, tendering, or joint‑venture arrangements between competing firms.
• Any arrangement where the restriction on hiring is reciprocal and horizontally agreed rather than unilaterally imposed by one employer on its own departing employee.

The distinction is critical: an employer may lawfully include a client‑non‑solicit in an individual employee’s contract. The same employer may not agree with a competitor that neither company will hire the other’s staff. Industry observers expect the BCA to continue prioritising labour‑market competition cases through 2026 and beyond, meaning the enforcement risk is rising, not receding.

Non‑compete vs Non‑solicitation in Belgium: Side‑by‑Side Comparison

Key takeaways from the comparison:

• The non‑compete offers broader protection but at a defined, significant cost, and is simply unavailable for employees below the salary threshold.
• The client‑non‑solicit is cheaper and more flexible but provides narrower protection and is harder to enforce in factual disputes about what constitutes “solicitation.”
• Inter‑company no‑hire agreements should be treated as off‑limits unless reviewed and cleared by antitrust counsel.
• The 2026 threshold increase has pushed certain mid‑level employees out of non‑compete eligibility, making the non‑solicit the only realistic option for this cohort.

Dimension‑by‑Dimension Analysis: Non‑compete vs Non‑solicitation Belgium

Eligibility and Salary Thresholds

The salary threshold is the first filter in any non‑compete decision. As of 1 January 2026, the FPS Employment threshold for the standard non‑compete is approximately €44,447 gross annual remuneration. Employees below this threshold cannot be bound by a post‑termination non‑compete, any clause purporting to do so is void, and the employer may still owe the agreed indemnity. A second threshold of approximately €88,893 applies to the extended “deviation” non‑compete for senior managers.

Non‑solicitation clauses have no equivalent salary threshold. This makes them the default instrument for restricting client contact by mid‑level and lower‑paid employees who fall below the non‑compete threshold.

Cost and Compensation

The compensation for non‑compete obligations is the single largest cost driver in this decision. The table below illustrates representative employer costs for three employee profiles.

These figures are illustrative. Actual employer costs depend on sector CBAs, individual contract terms, and the tax and social‑security treatment of the indemnity. The tax implications of the non‑compete in Belgium are significant: the indemnity is generally treated as remuneration for social security purposes and taxed as ordinary income for the employee, which may affect negotiations over the net amount.

Enforceability and Litigation Risk

Belgian courts construe non‑compete clauses narrowly. Common grounds for invalidation include:

• Overbroad geographic scope (extending beyond the employer’s actual market).
• Failure to specify the prohibited activities with sufficient precision.
• Duration exceeding 12 months.
• Missing or late payment of the indemnity.
• Employer failing to waive the clause within 15 days of termination, triggering an obligation to pay the indemnity even when the employer never intended to enforce the restriction.

For non‑solicit clauses, enforceability hinges on drafting clarity. Vague prohibitions, “the employee shall not contact any client of the company”, are vulnerable to challenge. Clauses that define “client” by reference to a specific list, time period, or personal relationship are more robust. Proof of solicitation (as distinct from the client independently approaching the ex‑employee) is frequently the decisive factual issue.

Competition and Regulatory Burden

The regulatory dimension applies almost exclusively to non‑solicitation arrangements structured as competition‑law no‑hire clauses. Following its 2024 enforcement actions, the BCA treats mutual no‑hire agreements between competing employers as by‑object restrictions, meaning the Authority does not need to prove anti‑competitive effects; the agreement itself is presumed harmful. Fines are calculated as a percentage of turnover. Dawn raids, document seizures, and leniency applications are all part of the enforcement toolkit.

Safe practice for employers: a non‑solicit clause imposed unilaterally on a departing employee is a labour‑law instrument and does not, by itself, raise competition concerns. A no‑hire clause agreed between two employers is a competition‑law instrument, and a dangerous one.

Timing, Waiver and Post‑Termination Mechanics

The 15‑day denunciation rule is one of the most underappreciated risks of the non‑compete in Belgium. After the employment contract ends, the employer has exactly 15 days to waive the non‑compete clause. If it fails to do so within this window, it is bound by the clause, and must pay the full indemnity, even if it no longer wishes to enforce the restriction. Employers terminating employees must therefore make a conscious enforcement‑or‑waive decision within this tight deadline.

Garden leave, paying the employee to stay home during the notice period, is sometimes used as a complementary or alternative measure. While Belgium does not have a statutory “garden leave” regime comparable to the UK’s, employers can achieve similar results through paid notice‑period arrangements. The cost model differs: garden leave vs non‑compete involves paying full salary during the notice period rather than a post‑termination lump sum.

Role‑Specific Effectiveness

• Senior executives and key account managers. Non‑compete is the strongest tool, and the indemnity is typically affordable relative to the value of the client relationships at risk.
• Sales representatives with client portfolios. Client‑non‑solicit is often more proportionate: it protects the client list without barring the sales rep from working, reducing talent‑market friction.
• Technical or R&D staff. Non‑compete may be warranted where the employee has access to genuine trade secrets. A non‑solicit adds little value if the risk is know‑how transfer rather than client solicitation.
• Freelancers and independent contractors. The statutory non‑compete framework applies to employees. Restrictive covenants with contractors are governed by general contract law, drafting enforceable restrictive covenants for contractors requires particular care.

What Changed in 2024–2026

Two developments have materially altered the calculus for post‑termination restrictions in Belgium since 2024:

1. Belgian Competition Authority enforcement on no‑poach clauses. The BCA’s 2024 decisions, including the sanctioning of mutual no‑hire arrangements in the private security sector, established that inter‑company no‑poach agreements can be treated as by‑object restrictions of competition. Industry observers expect this enforcement trend to intensify. Employers who previously used informal no‑hire understandings with competitors must now treat those arrangements as unlawful and dismantle them.

2. Updated FPS salary thresholds effective 1 January 2026. The indexed thresholds determine which employees can be bound by non‑compete clauses. The upward adjustment to approximately €44,447 (standard) and €88,893 (deviation) means that some employees who were eligible under previous thresholds may no longer be. Employers with existing non‑compete clauses for mid‑level employees should audit their contracts against the new thresholds: a clause that was valid when signed may now be unenforceable if the employee’s salary has not kept pace with the indexed threshold.

The combined effect: non‑competes have become simultaneously more expensive (higher thresholds exclude more employees) and more necessary for genuinely senior roles, while non‑solicit clauses have become the default for mid‑level protection, provided they are not structured as inter‑firm agreements.

Decision Framework: When to Choose Non‑compete vs Non‑solicitation in Belgium

Choose non‑compete when:

• The employee earns above the FPS salary threshold (≈ €44,447 gross annual as of 1 January 2026).
• The employee has access to trade secrets, strategic know‑how, or high‑value client relationships.
• The employer can absorb the indemnity cost (typically ≥ 50 % of gross salary for the restriction period).
• The competitive threat is the employee working for a rival, not merely contacting clients.
• The employer is prepared to make the enforce‑or‑waive decision within 15 days of termination.

Choose client‑non‑solicit when:

• The employee is below the salary threshold and a non‑compete is therefore unavailable.
• The primary risk is client defection, not the employee’s general competitive activity.
• The employer wants to avoid the mandatory indemnity obligation.
• The clause is imposed unilaterally on the departing employee (not agreed with a competitor).
• The solicitation risk can be clearly defined (named clients, defined time period, specific accounts).

Escalate to counsel immediately when:

• The arrangement involves any form of mutual agreement with a competitor not to hire each other’s staff.
• The employee works across multiple jurisdictions and applicable law is uncertain.
• Sector CBAs modify or restrict the statutory framework.
• A departing senior executive proposes a negotiated settlement including post‑termination restrictions.

When to Engage a Labour Lawyer for This Decision

Not every restrictive covenant requires bespoke legal advice. A straightforward client‑non‑solicit for a mid‑level employee in a single‑country role can often be drafted using well‑tested precedent. But certain situations demand professional review before the clause is signed, or enforced.

Engage a labour lawyer when:

• The employee is a senior executive or earns near the deviation threshold (≈ €88,893). The extended non‑compete rules for senior staff involve additional conditions and higher compensation, errors are expensive.
• Your business operates across borders. Multi‑jurisdictional employment raises choice‑of‑law questions. A non‑compete valid in Belgium may be unenforceable in the Netherlands, France, or Germany, and vice versa.
• You are considering any form of inter‑company hiring restriction. Even informal “we won’t hire your people” understandings now carry serious antitrust exposure. Get competition‑law clearance before proceeding.
• You are negotiating a termination settlement that includes post‑term restrictions. The interaction between notice‑period obligations, garden leave, non‑compete indemnities, and severance requires coordinated drafting.
• You need to enforce an existing clause against a departing employee. Litigation strategy, injunctions, proof of breach, calculation of damages, requires specialist input.

When briefing your lawyer, prepare: the employee’s current payroll records and gross annual salary; the applicable sector CBA; the geographic scope of your business operations; any existing restrictive covenants in the employment contract; and a clear statement of which business interest you are trying to protect (trade secrets, client relationships, or staff retention).

Sources

1. FPS Employment (Belgium), Non‑compete clause (Niet‑concurrentiebeding)
2. Belgian Competition Authority, Press Release nr 27/2024
3. Claeys & Engels, Non‑solicitation clauses: BCA sanctions
4. ICTrechtswijzer, Non‑compete clause (Belgium)
5. Multiplier, Belgium non‑compete salary thresholds
6. Van Bael & Bellis, BCA tackles no‑poaching arrangement
7. CMS Expert Guide to Dismissals, Belgium