With decision no. 20228, issued on September 4, 2013, the Italian Supreme Court stated that diversion of employees, in order to constitute unfair competition, requires the intent to damage the competitor’s business.

The intent to cause damage exists whenever the diversion of the employees is put in place in such a way that it cannot be justified in light of the principles of professional integrity.

According to the Supreme Court, the intent to damage can be inferred from the following elements: a) the amount of the diverted employees; b) the dimension of the competing company structure; c) the position of the diverted employees within the competing company; d) the difficulty to replace such employees; e) the speed of the diversion; and f) the concurrent economic initiative of the employing company.

In light of these principles, the Supreme Court upheld the condemnation for diversion of employees issued against a company that, before terminating a contract with its distributor, hired its most experienced employees. This action was aimed i) to immediately build a distribution network to directly market its products without intermediaries and, ii) to jeopardize the other company’s business by pirating its most expert employees.