Noerr | No-poach agreements in an M&A context: European Commission imposes significant antitrust fines

Antitrust in labour markets remains a hot topic in the EU. There have been recent landmark decisions by the European Commission (“Commission”) and the French Competition Authority which, alongside Advocate General Emiliou’s opinion in the pending Tondela “Football” case, are instructive for companies navigating the pitfalls of no-poach agreements under antitrust law. These have prompted us to update our previous article.

EU Commission on no-poach agreements in an M&A context

In 2018, Delivery Hero acquired a minority stake in Glovo, achieving full control over Glovo only by 2022. Since the initial stake in Glovo did not confer control to Delivery Hero, it could not rely on the “antitrust group privilege” exempting group companies from the ban of anti-competitive agreements (i.e. Article 101 TFEU). Hence the ban on anti-competitive agreements remained applicable.

The Commission carried out unannounced inspections in November 2023 (press release) and in June 2025 ultimately found multiple infringements of Article 101 TFEU, resulting in significant fines of €329 million on Delivery Hero and Glovo (press release):

• No-poach agreement regarding employees. The shareholders’ agreement conferring a minority and non-controlling stake in Glovo to Delivery Hero included limited reciprocal no-hire clauses for certain employees. This arrangement was later expanded to not actively approaching each other’s employees more generally.
• Allocation of markets. The companies agreed to divide the national markets for online food delivery in the EEA among themselves by removing all existing geographic overlaps between themselves and avoiding any future overlaps.
• Exchange of commercially sensitive information. The conduct also included exchanging commercially sensitive information enabling the companies to align and influence their market conduct.

Market allocations are regularly qualified as very severe infringements of competition law. This also applies to exchanging commercially sensitive information (see our previous NOERR insights). As regards no-poach agreements, this is the Commission’s first decision. However, the Commission had already voiced its critical view in its policy brief of May 2024: according to the Commission, wage-fixing and no-poach agreements alike typically qualify as very severe “by object” infringements. The “by object” qualification relieves an authority from its obligations to find actual effects of the conduct on competition. However, such a per se qualification of no-poach agreements is debatable (see for comments our NOERR insights).

This decision is a reminder that in the M&A context parties must ensure that no anti-competitive agreements or alignment of business strategies occur where investments do not confer full control over a target. HR-related agreements must be scrutinised closely to avoid any restrictions infringing antitrust laws.

French Competition Authority’s differentiated stance on no-poach agreements

Following a leniency application, the French Competition Authority (“FCA”) investigated and recently fined several French companies in the engineering, technology consulting and IT services sectors €29.5 million for participating in anti-competitive “gentlemen’s agreements” that prevented them from poaching and hiring each other’s management teams. The scope of these agreements was not limited in duration and applied to all business managers, regardless of the tasks assigned to them or the customers they worked for. The FCA highlighted the strategic importance of human resources as a key competitive parameter and found that no-poach agreements are severe infringements of competition, i.e. “by object” infringements.

However, an assessment may change depending on the exact circumstances to which such agreements apply. Besides the above-mentioned gentlemen’s agreements, the parties involved entered into “partnership contracts” that included non-solicitation clauses. Notably, without providing any details on those contracts or clauses, the FCA found that within the context of a partnership contract these clauses could not be qualified as restricting competition given their limited temporal and material scope and their objectives. Conversely, the Commission’s policy brief suggests that no-poach agreements are typically not necessary to prevent employees from being hired by competitors, and therefore seem difficult to exempt from the ban on anti-competitive agreements. The Commission considers that less restrictive alternatives to no-poach agreements between competitors exist, notably non-competes with employees. However, the FCA also emphasised that depending on the circumstances, such clauses might be deemed anti-competitive “by object”, in this way providing limited guidance to companies.

EU Court’s Advocate General Emiliou considers that no-poach agreements will often infringe EU competition law

The Tondela case (C-133/24), currently pending before the Court of Justice of the European Union (“ECJ”), addresses no-poach agreements within the Portuguese Football League during the COVID-19 pandemic. Professional Portuguese football clubs mutually agreed not to recruit each other’s players during the pandemic with the aim of holding players to their contracts until the end of the season and deterring terminations for just cause.

In his recently published opinion, Advocate General Emiliou acknowledges that no-poach agreements generally have “all the characteristics to be considered prima facie restrictive of competition ‘by object’.”

However, he emphasises the importance of context, concluding that in sport, for example, no-poach agreements may not constitute a restriction “by object” if the agreement’s genuine rationale was to preserve the fairness and integrity of the sports competition affected by the pandemic. He also suggests that the Meca-Medina case-law could apply (indicating that the no-poach agreements might not infringe antitrust laws at all) “provided that, in particular, the agreement genuinely sought to ensure the integrity and fairness of the sports competition, and it was necessary and proportionate to that objective.”

Key take-aways and outlook

Companies are well advised to include their human resources departments in regular antitrust and dawn raid training. The seriousness of no-poach agreements for competition authorities has become increasingly evident over the last few years. Although Advocate General Emiliou’s sports context argument might affect the qualification of such agreements in particular situations, it is likely that authorities will often treat no-poach agreements as prohibited “by object” infringements.

This strict approach also applies to the merger and acquisition context where the group privilege is not applicable because the acquirer does not obtain (full) control over a target. In such situations, any form of no-poach must be closely scrutinised and will only be permissible in exceptional cases.

Compliments of Noerr – a Platinum Member of the EACCNY