Are NDAs legally binding in France? A guide for employers

To protect sensitive information, employers hiring in France commonly require employees, attorneys, financial advisors, and other parties they might share confidential information with to sign a non-disclosure agreement (NDA). However, as in other nations, such as the UK and Canada, French legislators have kept a close eye on employers who misuse NDAs to intimidate employees into silence or try to utilize non-disclosure agreements to punish whistleblowers.

In light of the new legislation and the fact that France is well known for its strong protections for workers and their rights, many employers are wondering: Are NDAs enforceable in France? How can you use non-disclosure agreements to protect your company and its global employees while remaining compliant with the law? This guide will answer these questions and more.

(Note: This guide is solely for information purposes and isn’t intended to provide legal advice.)

What is an NDA?

A non-disclosure agreement (also known as an NDA or a confidentiality agreement) establishes a confidential relationship between two parties: the one that shares sensitive information, and the party that receives that information. It is a legally enforceable contractual agreement that states that the latter cannot share this information without facing legal consequences.

NDAs are used in a wide variety of contexts. For instance, if you’re hiring an attorney to help you manage your company’s business affairs in France, you’ll have them sign a non-disclosure agreement to ensure your information is kept confidential. They’re also a common fixture in the workplace: The majority of employers have employees sign confidentiality agreements before they begin their jobs.

As mentioned earlier, as of 2016, whistleblowers are protected from retaliation by their employers, even if they’ve signed an NDA in France. The same goes for employees who have witnessed or been subject to sexual harassment, assault, discrimination, or another serious offence in the workplace (more on this later).

Are non-disclosure agreements enforceable in France?

Simply put, yes, confidentiality agreements are enforceable in France. There are a few things you should keep in mind when you’re drawing up your NDA. These include:

• When you’re sharing trade secrets with a party, you should never assume that confidentiality is implied. For instance, just because you’re speaking with a lawyer or financial advisor, both of whom are known for keeping their clients’ information confidential, don’t just assume confidentiality is a given. Under French law, a written contract specifying which information is sensitive and shouldn’t be disclosed is absolutely necessary.
• In 2016, France officially added Sapin 2 to its civil code. This was one of the first laws that created the status of the whistleblower and protected them from harm if and when they disclosed criminal or unethical actions occurring at their workplace. These protections were updated and strengthened in 2022 and go above and beyond the legal protections for whistleblowers in other European Union countries.

You can generate NDAs, offer letters, and any other documents you need, then easily send them out for e-signature—all through Rippling.

Three things you need to know about NDAs in France

1. Non-disclosure agreements don’t necessarily bar employees from finding another job

While confidentiality agreements are allowed to bar employees from revealing trade secrets and other sensitive information to third parties, they cannot be used to prevent workers from seeking employment elsewhere.

In one court case in France, an employee who was made redundant argued that his NDA prevented him from seeking employment with a competitor and that he should therefore be entitled to financial compensation while he was out of work. Interestingly, the High Court rejected his argument and stated that the contractual agreement did not entitle him to any financial compensation from his current employer and that it was perfectly fine for him to apply for a position at a competing company.

2. Under French law, confidentiality agreements must contain certain elements to be enforceable

When drawing up an NDA in France, it’s crucial to include the following components:

• Specific, precise definitions of what’s covered by the NDA. Be very specific about what information is of a confidential nature, and don’t leave out information you receive or disclose if you’re in the negotiations stage with an employee, potential partner, or another business. Additionally, if you’d like information exchanged during verbal conversations to be considered confidential, that should be clearly indicated in the confidentiality agreement.
• The specific responsibilities of the other party. Your NDA should clearly explain exactly how the other party is expected to keep the confidential information to themselves. In France, there’s a major loophole in NDA laws that some people try to get around: Even if they sign an NDA, they can try to protect the information they’re given under an intellectual property right registration without your consent, making the trade secrets theirs and ensuring they don’t have to keep the information confidential.
• The consequences of a breach. Specify the consequences of breaching the NDA.
• What happens if negotiations fizzle out. If you were divulging confidential information during a negotiation, say, in the hopes of hiring a talented employee or merging with another business, and the negotiation doesn’t work out, make sure you detail the consequences that will occur if they give sensitive information to a third party later on. Commonly, employers might demand restitution from the offending party if this happens. Or, they might destroy the information altogether, including recordings and documents.

3. Non-disclosure agreements can’t last forever

In France, NDAs, particularly those signed when two parties are negotiating with each other, can’t last forever. Generally, they are only enforceable between one and five years. In rare cases, they can be enforceable in perpetuity, but it’s uncommon.

When would an employee or contractor sign an NDA?

Usually, French employees and contractors sign NDAs before they have access to information of a confidential nature. This might be during the onboarding process, when they start a new employment contract, or even when they sign their new hire offer letter—NDAs are frequently included as confidentiality clauses in employment contracts.

Frequently asked questions about non-disclosure agreements in France

Are non-disclosure agreements enforceable in France?

Yes. French courts have a history of upholding non-disclosure agreements that meet the requirements of French laws and are specific about what’s confidential and what the consequences will be if confidentiality is breached.

As you draft your confidentiality agreement, keep Sapin 2 in mind. It’s an example of how progressive France has been when it comes to passing legislation that protects workers. And, in light of Macron’s recent changes to the rights of French workers, it’s not unreasonable to expect that there may be regulations in the future that change the way NDAs can be used by employers (and even employees, as seen in the High Court case example we discussed earlier).

Are NDAs enforceable overseas?

The short answer is yes. However, whether a non-disclosure agreement in France is enforceable overseas depends on numerous factors, such as the laws of the country where it’s being enforced, the cultural norms and public policy of that nation, and other similar factors.

When you’re drawing up a non-disclosure agreement and you and your employee don’t live in the same country, it’s best to agree on the legal system and jurisdiction the confidentiality agreement will be covered by before signing anything.

What information can be covered by an NDA?

French law has been frustratingly vague about exactly what information can be covered by an NDA, and, as mentioned earlier, there are certain loopholes enterprising and knowledgeable parties can use to work around confidentiality agreements. In light of the lack of clarity, it’s best to consult a French attorney when you’re creating an NDA to make sure you’re protected and compliant with French laws.

One other note: While you’re speaking with your attorney about what to include in the NDA, get their advice on when it’s best to use a non-disclosure agreement in France, since this is equally unclear.

Rippling makes it simple to create and send out an NDA as part of a job offer package.

Is an NDA the same as a confidentiality agreement?

Yes. NDAs and confidentiality agreements are all terms used interchangeably to refer to the same thing.

Is an NDA the same as a non-compete agreement?

No. A non-compete agreement provides protection for a company in a different way than a non-disclosure agreement: It bars an employee from engaging in actions that could be considered competitive for a specified period of time. In France, this is usually 6 months to a year (2 years at most). Additionally, non-compete clauses in France don’t necessarily apply to the entire country or to jobs abroad: They only prevent employees from engaging in competitive activities in certain regions.

Additionally, if an employee signs a non-compete clause in France, they are entitled to compensation for the duration of the clause. Again, this is anywhere from 6 months to two years.

Is an NDA ethical?

Yes, so long as they do not silence whistleblowers.

Benefits of NDAs in France

NDAs in France are ethical, legal ways of protecting a company’s confidential information and helping them stay competitive. Their benefits include:

• Legally protecting a company’s confidential information and trade secrets when they are disclosed to another party.
• Preventing the unauthorized disclosure of confidential information and permitting the company to seek legal recourse against the violating party.

What happens if a confidentiality agreement is breached?

The penalties for breaching an NDA can vary. They’re usually based on factors like what consequences were outlined in the original non-disclosure agreement, how severe the breach and the subsequent damages are, and other laws the breach might have violated. Since it’s a legally binding contract, you can take legal action against the other party.

Run your global workforce in France with Rippling

With Rippling, you can onboard employees and contractors in France in just 90 seconds. ​​Generate NDAs, offer letters, and any other documents you need, then easily send them out for e-signature.

Plus, you can pay all of your employees and contractors in France and around the world, without waiting on transfers or currency conversion.

Rippling allows you to manage HR, IT, and Finance in one unified system—and automate your global compliance work. See Rippling.

Rippling and its affiliates do not provide tax, accounting, or legal advice. This material has been prepared for informational purposes only, and is not intended to provide, and should not be relied on for tax, legal, or accounting advice. You should consult your own tax, legal, and accounting advisors before engaging in any related activities or transactions.