Non-compete covenants and remote work: the Court of Milan on the limits of “remote performance” clauses

The Employment Section of the Court of Milan has once again ruled, in the context of interim proceedings, on the validity of non-compete covenants in the digital work environment, addressing in particular the issue of so-called “remote performance” clauses.

By order of 2 April 2026, the Court declared null and void a non-compete covenant which, alongside a traditional territorial limitation, extended the prohibition also to activities carried out outside the specified territory, provided that they were capable of producing effects — even only partially — within the prohibited geographical area.

In the case examined, the covenant expressly referred to tools typically used in remote work, such as e-mail and videoconferencing, providing that the restriction would apply regardless of the employee’s physical presence in the identified territory.

According to the Court, however, such wording made the geographical limitation required by Article 2125 of the Italian Civil Code impossible to determine.

The order reiterates that the employee must be able to know precisely, at the time of signing, the territorial scope within which his or her professional activity is prohibited. Clauses drafted in overly generic or flexible terms may instead extend the restriction in a potentially unlimited manner, excessively limiting the employee’s opportunities for professional relocation.

In particular, the reference to the “production of effects” of the work activity was considered insufficient in terms of determinability, especially in the absence of objective parameters allowing the territory affected by the prohibition to be concretely identified.

The decision forms part of a context in which the spread of smart working and digital work has progressively reshaped the traditional concept of workplace. Companies increasingly seek to adapt non-compete covenants to activities that may be performed anywhere but may affect clients or markets located in different territories.

This is precisely where the central point addressed by the Court emerges: the technological transformation of work does not remove the requirements of determinability laid down by Article 2125 of the Italian Civil Code.

The ruling is consistent with a stricter line of case law, also shared by other recent first-instance decisions, according to which reference to the place where the effects of the work activity are produced creates margins of uncertainty incompatible with the very function of the territorial limitation.

There is, however, a different approach which tends to reinterpret the concept of territory in light of the dynamics of digital work, identifying it with the company’s reference market or the economic area in which the employer operates.

The Court of Milan appears to clarify, however, that this approach too requires concrete, verifiable and foreseeable criteria. In the absence of such elements, the risk is that the entire non-compete covenant may be declared null and void.

The decision is of particular practical relevance for companies that use organisational models based on agile working or on activities carried out mainly remotely. Many covenants drafted in recent years contain clauses built precisely on the idea that the effects of digital work may arise without easily identifiable territorial limits.

From this perspective, the order highlights the need to define the geographical limitation of the covenant through specific and objectively verifiable criteria, avoiding excessively broad or indeterminate wording linked merely to the “production of effects” of the work activity.