European Commission Issues First-Ever No-Poach Decision and Condemns Minority Investment That Resulted in Collusion
June 5, 2025
On June 2, 2025, the European Commission (“Commission”) issued its first decision on no-poach agreements.1 Following dawn raids in July 2022 and November 2023, it fined Delivery Hero and Glovo €329 million for participating in a food delivery cartel.2
As part of Delivery Hero’s minority investment in Glovo, Delivery Hero and Glovo agreed not to poach each other’s employees. The Commission found that this amounted to a “by object” restriction, which can be harmful to competition by its very nature. The Commission also found that Delivery Hero and Glovo engaged in more traditional cartel conduct, including exchanging commercially sensitive information and partitioning national food delivery markets. These practices were facilitated by Delivery Hero’s minority shareholding in Glovo. All three practices, including the no-poach agreement, constituted a single and continuous infringement, so no part of the fine is attributed exclusively to the no-poach agreement.
In any case, the Commission’s decision against Delivery Hero and Glovo follows a growing number of national precedents concerning no-poach agreements. National competition authorities in Europe, notably in Belgium, Poland, Portugal, Romania, Slovenia, and France, have recently sanctioned or investigated no-poach agreements.
No-poach agreements are likely “by object” restrictions of competition
Although the Commission’s full decision is not yet available, the Commission’s press release states that the shareholders’ agreement signed at the time of the minority investment included limited reciprocal no-hire clauses. The arrangement was subsequently expanded to a general agreement not to actively approach each other’s employees.
The Commission’s decision is consistent with its position laid out in its 2024 Policy Brief in which it considered that “all forms of no poach agreements, including no-hire and non-solicit agreements, and even agreements creating a one-way (non-reciprocal) obligation, are likely to be restrictions of competition by object.”3 Agreements may qualify as restrictions of competition by object if there is “sufficiently reliable and robust experience” to conclude that “that agreement is, by its very nature, harmful to […] competition.”4
In its 2024 Policy Brief, the Commission considered that no-poach agreements fulfill these conditions because their objective is to prevent employees from freely moving between competing employers—thereby reducing wages, increasing search costs for employers, and preventing the efficient allocation of productive employees to productive firms.
The Commission’s position is consistent with Advocate General (“AG”) Emiliou’s Opinion delivered on May 15, 2025 in the Portuguese football clubs case.5 In this Opinion—which does not constitute a final judgment and does not bind the Court of Justice—AG Emiliou found “that no-poach agreements […,] unless they are ancillary to a legitimate transaction which is itself not anticompetitive, [have] all the characteristics to be considered prima facie restrictive of competition ‘by object’” because “the economic rationale of most no-poach agreements between competitors is anticompetitive.”6
AG Emiliou, however, cautioned that this “is by no means the end of the analysis.”7 The content, legal and economic context, and objectives of the agreement should be considered to verify whether they “may cast doubt on the harmful nature of the agreement in question.”8 This caution follows established precedents that require competition authorities to review circumstances that may cast doubt on the prima facie anticompetitive nature of an agreement.9
Consistent with this safeguard, no-poach agreements may benefit from the ancillary restraints exemption, for example, when no-poach provisions are part of a supply agreement. The Commission’s 2024 Policy Brief confirmed that narrowly tailored no-poach provisions, limited to key employees and in time, which are necessary and proportionate to the main agreement they are part of, may be allowed. The Commission’s Notice on restrictions directly related and necessary to concentrations also makes it clear that non-solicitation provisions in the context of mergers may be valid if they are limited in scope.10
Minority investments should not facilitate collusion
The decision, as underlined by Teresa Ribera, First Executive Vice-President for Clean, Just and Competitive Transition, “is also the first decision that shows how companies can misuse small stakes in a rival company for anticompetitive reasons.”11 Neither the minority acquisition nor the subsequent acquisition of control were reviewed by the Commission, but the latter was reviewed and unconditionally cleared by the Spanish competition authority in 2021. The Commission’s press release of June 2, 2025 notes that the investigation was prompted by whistleblower reports and tip-offs from national competition authorities—including possibly from the Spanish competition authority as part of its 2021 review.12
The Commission found that Delivery Hero’s minority investment allowed the development of a close relationship between the executive teams of the two companies that went beyond “what was required by Delivery Hero’s monitoring of its financial investments in Glovo.”13 The companies reciprocally exchanged documents—including strategy papers—held meetings to share knowledge, and exchanged information related to current and future pricing and commercial strategies.14
The Commission also found that Delivery Hero used its role as a shareholder to convince Glovo to share markets in the EEA. The companies agreed which of them would enter markets in which neither of them had a presence, refrained from entering national markets where the other was already present, and removed their geographic overlaps by selling to each other their businesses in certain markets.
Key take-aways for companies active in the EU
No-poach. Companies should review their HR-related policies and incorporate the increased antitrust risk of no-poach agreements in their risk assessment and antitrust compliance policies. For example:
- Companies should expand their antitrust compliance programs to HR personnel and reflect the latest enforcement trends and guidance in their compliance trainings.
- Companies should review their HR-related policies in the EU to determine whether their HR teams avoid recruiting from specific companies—or, more generally, whether they have entered into no-poach agreements. Any such hiring restraints are risky and should be assessed with legal counsel.
- Companies should audit their processes for setting employees’ compensation and benefits—including, e.g., benchmarking exercises. Any understandings—or even discussions—with another company about compensation or benefits are risky and should be discussed with legal counsel.
Minority investments. Companies should ensure that legitimate minority investments do not lead to collusion, notably in the form of illegal information exchanges and market partitioning. Companies should ensure that proper ring-fencing structures are in place to control information flows and that governance rights are used appropriately.
1European Commission, Press release, Commission fines Delivery Hero and Glovo €329 million for participation in online food delivery cartel, June 2, 2025, available here.
2European Commission, Press release, Antitrust: Commission confirms unannounced inspections in the online food delivery sector, July 6, 2022, available here. European Commission, Press release, Antitrust: Commission confirms unannounced inspections in the online food delivery sector, November 21, 2023, available here.
3European Commission, Competition policy brief – Antitrust in Labour Markets, May 2024, ISBN 978-92-68-15529-5, ISSN: 2315-3113, available here (emphasis added).
4Case C-228/18, Budapest Bank, Judgment of April 2, 2020, EU:C:2020:265, para. 76.
5Case C-133/24, CD Tondela and Others, Opinion of May 15, 2025, EU:C:2025:364.
6Case C-133/24, CD Tondela and Others, Opinion of May 15, 2025, EU:C:2025:364, paras. 49 and 53.
7Case C-133/24, CD Tondela and Others, Opinion of May 15, 2025, EU:C:2025:364, para. 54.
8Ibid.
9Case C‑228/18, Budapest Bank, Opinion of September 5, 2019, EU:C:2019:678, paras. 41 and 48, cited in Case C-133/24, CD Tondela and Others, Opinion of May 15, 2025, EU:C:2025:364, fn. 37. See, also, Cases C‑403/08 and C‑429/08, Football Association Premier League and Others, Judgment of October 4, 2011, EU:C:2011:631, para. 143.
10Commission Notice on restrictions directly related and necessary to concentrations (2005/C 56/03), paras. 26 and 41.
11YouTube, Shocking New Rules!!! €329 Million Fine for Delivery Hero & Glovo Over Online Food Delivery Cartel!, available here.
12European Commission, Press release, Commission fines Delivery Hero and Glovo €329 million for participation in online food delivery cartel, June 2, 2025, available here.
13Ibid.
14Ibid.
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