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On 2 June 2025, the European Commission fined two major players in the home delivery sector a total of €329 million for participating in a cartel facilitated through Delivery Hero’s minority shareholding in rival Glovo.
Interestingly, but not surprisingly, this landmark decision is the first to address two core issues discussed over the past years: no-poach agreements and the risk of collusion resulting from minority shareholding (see our two previous posts here and here).
Although crucial, this decision does not set in stone the fate of no-poach agreements, given the recent developments in proceedings before the European Court of Justice.
According to the Commission, the companies entered into an anti-competitive agreement in 2018 when Delivery Hero purchased a 16% non-controlling stake in Glovo, a Spanish-based company specializing in food delivery. The cartel ended in 2022, with the acquisition of sole control of Glovo, which was cleared by the Spanish competition authority in Phase I.
The Commission sanctioned three types of conduct:
The companies benefited from the Commission’s settlement procedure and received a 10% reduction of their fine, making it unlikely that this decision will be appealed.
While this acquisition did not give control to Delivery Hero, the minority shareholding gave it the right to name a member onto Glovo’s board, thus providing it access to sensitive information from its competitor and ultimately to align their respective business strategies.
The Commission explains that “owning a stake in a competitor is not in itself illegal, but in this specific case it enabled anti-competitive contacts between the two rival companies at several levels”. Unsurprisingly, the Commission found this to be an anti-competitive arrangement without suitable justification. This decision therefore reflects the risks associated with (non-controlling) cross-shareholdings between competitors
This is the first fine the Commission has issued against no-poach agreements, and marks a year after the publication of a Policy Brief on Antitrust and Labour Markets announcing the Commission’s intention to sanction such practices.
At first, the share purchase agreement included limited reciprocal no-hire clauses for certain employees, which was then extended to a general agreement not to actively approach each other’s employees.
No-poach agreements can (in general) either consist of:
While this distinction was set in the 2024 Competition Policy brief, the Commission considered that it did not have an impact on the conclusion that all such agreements could constitute restrictions by object.
However, there are reasons to believe that no-poach agreements might not always be seen as by object restrictions.
On 15 May 2025, Advocate General Emiliou delivered its opinion in Case C-133/24 confirming that a non-solicitation clause can be justified, and is therefore not necessarily a restriction by object “considering its limited scope”, taking into account the “exceptional circumstances in which they were concluded”. This case concerned no-poach agreements entered into by Portuguese football clubs to limit the transfer of their players during the COVID-19 pandemic.
Set against the Portuguese football case, the Delivery Hero / Glovo decision involves not only a no-poach agreement but also exchanges of commercially sensitive information and market allocation. The presence of the no-poach agreement alongside other practices that are widely regarded as restrictive, has undoubtedly made it easier for the Commission to conclude that there was a restriction by object.
In our view, such a conclusion will likely be more challenging to reach when it comes to sanctioning standalone no-poach arrangements. As Advocate General Emiliou reminds us, cases will require a rigorous analysis of the restrictive effects of the agreement at stake, and enforcers cannot limit themselves to merely stating the general effects of no-poach clauses.
Given that Delivery Hero’s initial stake was non-controlling, this decision does not call into question the potential compatibility of non-solicitation clauses that are ancillary to a concentration. However, the decision reiterates that, absent a concentration, no-poach agreements may be strictly assessed under Article 101(3).
In North America, the authorities consider that such clauses can be justified when they are proportionate to their objective. Canadian law and the associated guidelines provide that no-poach agreements can be justified on the basis of the ancillary restraints doctrine: “the ancillary restraints defence (the ARD) is available when certain desirable business transactions or collaborations require restraints on competition to make them efficient, or even possible."
In the United States, the guidelines issued by the Department of Justice and the Federal Trade Commission do not recommend treating all no-poach agreements as per se violations of competition law, but only those that qualify as "naked restraints" (i.e. restrictions that are not ancillary to a legitimate partnership between the parties). By contrast, non-solicitation agreements that are incorporated into a broader legitimate collaboration do not constitute per se violations.
10 June 2025
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