This Decision represents the first instance in which the EC has, specifically, imposed a fine in relation to a “no-poach” agreement. This enforcement action follows the Commission’s Policy Brief on Antitrust and Labour Markets, which had already signalled a heightened enforcement focus on such practices.
In its reasoning, the Commission determined that no-poach agreements may amount to a restriction of competition by object. According to the Commission, “no-hire” clauses amount to a form of sharing sources of supply within the meaning of Article 101(1)(c) TFEU and Article 53(1)(c) of the EEA Agreement.
The Commission further clarified that, given the non-controlling nature of the Delivery Hero’s stake, the no-hire clauses in the shareholders’ agreements were not subject to the rules on ancillary restraints applicable to concentrations. Nevertheless, the Commission assessed whether these clauses could be objectively necessary and proportionate to the relevant investment agreements but, ultimately, concluded that they (i) were unlimited in duration and territorial scope; (ii) were de facto reciprocal, going beyond what was necessary to protect the investors’ interests; and (iii) did not apply equally to all investors.
Moreover, the Commission confirmed that no-poach agreements may be analysed under Article 101(3). However, in this Decision, the Commission considered that the conditions of Article 101(3) of the Treaty and Article 53(3) of the EEA Agreement were not fulfilled
It is important to note, however, that although the Commission has clarified that it understands that a no-poach agreement can constitute a restriction of competition by object under Article 101(1) TFEU, the European Court of Justice has not yet rendered its ruling on this matter, whose confirmation is still pending.
Additionally, it should be emphasised that the present decision concerned not only a no-poach agreement, but also the exchange of commercially sensitive information and market sharing. The combination of the no-poach agreement with other practices commonly regarded as anticompetitive (such as market sharing) may have facilitated the Commission’s conclusion that the conduct amounted to a restriction of competition by object.
To date, there is no public decision in which the Commission has found that a standalone no-poach agreement, in and of itself, constitutes a restriction by object.