Non-poaching agreements – time for a contextual antitrust analysis.

Authors: dr Jarosław Łukawski and Natalia Komala

Non-poaching agreements – time for a contextual antitrust analysis

For several years now, national antitrust authorities have been focusing their efforts on detecting and penalising restrictions on competition in labour markets. Among the targets are no-poach agreements (arrangements restricting the professional mobility of employees), which have hitherto been regarded as infringing competition law regardless of their market effects.

The judgment of the Court of Justice of the European Union^[1] (CJEU) delivered on 30 April 2026 should change the legal classification of no-poach agreements and, above all, encourage national authorities to take into account the economic context in which such agreements are concluded.

The CJEU judgment reinforces the importance of a contextual analysis of agreements concluded between undertakings and limits the permissibility of automatically classifying no-poach agreements as infringing competition law.

No-poach agreements in the assessment of national competition authorities

A number of cases concerning the restriction of competition in labour markets arose during the COVID-19 pandemic, particularly in the sports sector. Amid economic uncertainty and disruptions to the running of competitions, clubs restricted other teams’ ability to recruit players in order to reduce the risk of individual athletes moving to rival teams. Although the aim of these arrangements appears to have been to ensure the stability of team squads and maintain the competitiveness of competitions, these agreements attracted the attention of national authorities, which consistently deemed them to automatically restrict competition.

This was precisely how the agreement between Portuguese clubs and football associations was assessed. Under this agreement, clubs undertook not to sign players who had terminated their contracts due to the extended league season. In April 2022, the Portuguese competition authority deemed the aforementioned agreement to be anti-competitive and imposed a total fine of €11.3 million on its participants.

The European Commission’s position on no-poach agreements

Following increased action by national authorities in labour markets, in 2024 the European Commission published a position in which it deemed agreements concluded in labour markets to be the most serious restriction of competition. In the Commission’s view, such agreements should be assessed in the same way as market-sharing or price-fixing agreements. According to the Commission’s approach, ‘no-poach’ agreements are – in almost every case – prohibited, which relieves the competition authority of the need to demonstrate their negative impact on competition.

Shortly after publishing the above position, in June 2025 the European Commission issued an unprecedented decision in the Delivery Hero & Glovo case. This decision was the Commission’s first ruling declaring an agreement restricting the professional mobility of employees to be invalid. The fine imposed by the European Commission in the Delivery Hero & Glovo case amounted to as much as €329 million.

No-poach agreements in the CJEU’s assessment

The position adopted by the European Commission regarding an absolute ban on no-poach agreements was not without controversy. It was taken up, among others, a Portuguese court hearing an appeal against a decision concerning an agreement between Portuguese football clubs and the football association, which referred a question to the CJEU for a preliminary ruling on whether agreements prohibiting the recruitment of players should be regarded as restrictions on competition ‘by object’, i.e. prohibited regardless of their market effects.

In his Opinion on this matter, Advocate General Nicholas Emiliou proposed a two-step approach to assessing the legality of no-poach agreements:

• In the first step, the Advocate General highlighted the negative effects of ‘no-poach’ agreements, such as ‘locking’ employees within a single employer or ‘freezing’ their terms of employment. In this way, the use of no-poach agreements may, in the Advocate General’s view, not only contribute to a reduction in wage levels but also lead to a deterioration in the quality of the products offered, which ultimately affects consumers.
• In a second step, however, the Ombudsman emphasised that despite the harmful nature of no-poach agreements, the legal assessment of their admissibility must take into account the legal and economic context in which they were concluded, as well as their scope and purpose. Only such a (comprehensive) analysis allows for an assessment of whether, in specific circumstances, a no-poach agreement infringes competition rules.

In its judgment of 30 April 2026, the CJEU concurred with the Advocate General’s opinion, holding that the assessment of the legality of a no-poach agreement requires an examination of the context in which it was concluded. The CJEU noted that such agreements should not automatically be classified as infringing competition rules on the basis of their purpose. In this regard, a detailed analysis of an agreement restricting the professional mobility of employees is necessary to assess the extent to which it harms competition. The CJEU also held that no-poach agreements may remain compatible with competition law if they serve other legitimate objectives in the public interest.

In the case under consideration, the CJEU held that although the clubs pursued an objectively anti-competitive objective (restricting player transfers), the agreement concluded by those entities simultaneously served an objectively pro-competitive objective, namely ensuring the integrity and stability of football teams’ squads upon the resumption of the season.

Consequences of the CJEU judgment

Against the backdrop of the European Commission’s position and the existing practice of national competition authorities, the Court’s judgment can be regarded as a step towards a more lenient assessment of no-poach agreements. The Court has, in fact, moved away from treating such agreements as infringing competition per se.

In light of the CJEU’s position, national competition authorities, when analysing cases concerning no-poach agreements, should not automatically classify such agreements as strictly prohibited, but, taking into account existing EU case law:

• examine the content and objective aims of the agreement in relation to competition, as well as the economic and legal context in which it was concluded;
• assess whether the agreement leads to conditions of competition that would not correspond to the normal conditions of competition prevailing in the sector or market in question;
• determine whether the no-poach agreement can be justified by the protection of a public interest (other than competition) and is suitable, necessary and proportionate sensu stricto for achieving that objective.

 

^[1] Judgment in Case C-133/24, CD Tondela – Futebol, SAD and Others v Autoridade da Concorrência