Lithuanian Competition Council sharpens its focus on anticompetitive agreements in labour markets – December 2025
Employers must be aware not only of the Labour Code, but also of the Law on Competition [1]. This is what the Competition Council of the Republic of Lithuania (hereinafter: the Competition Council) expressed most recently in their public statements [2].
In light of the globally increasing exposure of employers’ agreements not to solicitate employees or to fix wages, the Competition Council has lately stressed that companies must compete fairly, yet not only when buying or selling goods, but also while maintaining their employees or attracting new ones.
Growing concerns about the employers’ agreements on the international stage
Competition Council’s concerns are just spot on and very much in line with an increasing international focus on competition law issues in labour markets. For example, in February, 2025, the Chairman of the US Federal Trade Commission (hereinafter: the FTC) formed a Joint Labor Task Force that combines sources of different public institutions, such as the FTC, the Bureau of Consumer Protection, etc., for the sake of rooting out “deceptive, unfair, and anticompetitive labor-market practices that harm American workers” [3]. According to the FTC‘s Memorandum [4], such practices span from no-poach, wage-fixing and non-compete agreements to deceptive job advertising and other deceptive trade practices. Further, the Organization for Economic Co-operation and Development (hereinafter: the OECD) has time and again discussed competition issues in labour markets with the most recent focus on a specific form of buyers’ cartel [5]. Furthermore, on 2 June 2025, the European Commission imposed the EUR 329 million fine on Delivery Hero and Glovo for their agreement not to poach their employees, to exchange commercially sensitive information and to allocate geographic markets [6]. Finally, the Competition and Markets Authority (hereinafter: the CMA) in the UK in September 2025 updated their guidance on anticompetitive behaviour in labour markets [7], particularly stressing three types of such behaviour, i.e. no-poaching, wage-fixing and exchange of competitively sensitive information. All this shows that employers‘ agreements have attracted attention of competition authorities and other relevant institutions all over the world so that – on both sides of the Atlantic – competent institutions have their hands on the topic.
Updated guidelines of the Lithuanian Competition Council on the application of competition law to the employers’ agreements in labour markets
Along these lines, the Competition Council recently updated their Memorandum on the agreements restricting competition in labour markets [8]. The particular focus of the Council is on no-poach agreements, wage-fixing agreements and the agreements on sharing commercially sensitive information in terms of both horizontal and vertical competition. The competition authority, in their guidance, strives to raise awareness of employers about how to avoid entering into anticompetitive agreements in labour markets (for example, by informing the staff about the prohibition to enter into such agreements, by abstaining from sharing any confidential and commercially sensitive information about employees with other companies, etc.) and stresses the importance of expressly distancing oneself in case such an agreement is about to be concluded. In case the agreement has already been concluded, the Competition Council reminds about the leniency possibility for those participants of the anticompetitive agreement who inform the Competition Council about such an agreement and may thus receive full or partial immunity from fines. Otherwise, fines for such a competition law infringement could be imposed as of up to 10 percent of the annual worldwide turnover of the undertaking achieved in the preceding financial year. Finally, the competition authority encourages natural persons to inform the Competition Council about any anticompetitive agreements which they may be aware of and to get monetary remuneration the conditions of which are laid down in the Law on Competition.
In their guidance, the Competition Council draws attention to the fact that, in line with the case-law of the European Court of Justice (hereinafter: the ECJ) and the practice of the European Commission, collective employer-employee (including self-employed persons) agreements that merely outline the conditions of the employment or the improvement thereof, are not covered by competition law. However, the authority stresses that, in any case, it would nevertheless be important to evaluate the goals and the essence of the collective agreement, since such an agreement should not be used merely as a cover for an agreement restricting competition. Furthermore, the competition authority explains that restrictive covenants may be directly related to the implementation of a concentration. Therefore, non-solicitation agreements may, under circumstances, be justified. However, the authority explains that such restrictions are permitted only if they serve the lawful goals of the concentration and if their duration, geographic territory, the subject matter and the circle of the persons concerned are proportionate to the goals the concentration strives to achieve.
Finally, the Competition Council points out several alternative tools that may equally well protect know-how or secure the investment in employees’ learning costs. Such tools, according to the Council, are confidentiality agreements, “garden leave”, the employee’s commitment to proportionally compensate their learning costs as well as non-compete obligations that comply with the requirements laid down in the national labour law, such as the requirement for the employer to pay fair compensation to the employee.
Finally, the Competition Council notes that any anticompetitive agreement that falls under Article 5 of the Law on Competition (the national equivalent to Article 101(1) TFEU), thus including also anticompetitive agreements in labour markets, may be exempted under Article 6 of the Law on Competition (the national equivalent to Article 101(3) TFEU). However, the burden of proof lies with the party claiming exemption. Also, the competition authority explains that an agreement between competitors does not fall under Article 5 of the Law on Competition based on the doctrine of ancillary restraints. Such a restraint could be considered as ancillary if it fulfils cumulative conditions which are as follows: it is attached to the main agreement which itself is lawful and is not anticompetitive, the restraint is directly and inseparably attached to such an agreement and is objectively necessary for its implementation and the restraint is proportionate to the main agreement. Only if all these conditions are fulfilled – the circumstance that is for the parties of the agreement to prove – the ancillary restraint, even if it could restrict competition, could be deemed to be lawful.
Pending request for a preliminary ruling from the Supreme Administrative Court of Lithuania in front of the ECJ
It is noteworthy that, owing to the pending request for a preliminary ruling [9], the ECJ should shed some light on the questions related to the assessment of the employers’ agreements from the competition law point of view. The request was lodged on 12 May 2025 by the Supreme Administrative Court of Lithuania (hereinafter: the Supreme Administrative Court), which basically asks whether an agreement between the basketball clubs and their association, which organises a basketball club championship, not to pay salaries to players employed by the basketball clubs under contracts in force could be regarded as an agreement restricting competition by fixing the purchase prices of the basketball players’ services for the purposes of Article 101(1)(a) TFEU. Should this question be answered in the affirmative, the Court further wants to have it clarified whether such an agreement could be regarded as an agreement restricting competition by object. Finally, owing to the fact that the alleged agreement was concluded at the onset of the COVID-19 pandemic, the Court would like to know whether the economic and legal context regarding the beginning of the pandemic and thus related restrictions of the public authorities should be considered as relevant when assessing an agreement under Article 101 TFEU. In its decision [10], which was contested in the Lithuanian courts, the Competition Council found that a number of basketball clubs and their association concluded an agreement to fix prices for the services provided by the basketball players in terms of terminating basketball players’ contracts and abstaining from paying wages to them for the rest of the basketball season due to the fact that the basketball club championship had to be terminated and could not take place because of the COVID-19 outbreak. According to the Competition Council, such an agreement restricted competition by object and thus infringed Article 5(1)(1) of the Law on Competition and Article 101(1)(a) TFEU.
Concluding remarks
Although neither agreements in the employment relationship nor their restrictive covenants are new (apparently, non-competes were known as early as in the Middle Ages [11]), the topic of employers‘ agreements has recently attracted increasing attention of the competition authorities and other public bodies across the world. The competent institutions are particularly concerned that the employers‘ agreements, such as non-solicitation or wage-fixing agreements, may restrict competition and thus harm employees by reducing their mobility and depriving them of their free choice to choose an employer. Given the fact that competition authorities are increasingly scrutinizing such practices with a magnifying glass, it is likely that more cases are coming in the future, yet, hopefully, therewith also more answers to the complex competition laws issues in labour markets.
[1] Law on Competition of the Republic of Lithuania, 23 March 1999, No. VIII-1099 (with later amendments) (hereinafter: the Law on Competition).
[2] DARBDAVIAMS SVARBUS NE TIK DARBO KODEKSAS, BET IR KONKURENCIJOS ĮSTATYMAS | Konkurencijos taryba (in Lithuanian).
[3] FTC Launches Joint Labor Task Force to Protect American Workers | Federal Trade Commission.
[4] U.S. Federal Trade Commission, Memorandum as of 26 February 2025 „Directive Regarding Labor Markets Task Force“ (available at: Directive Regarding Labor Markets Task Force).
[5] OECD (2020), Competition in Labour Markets, available at: Competition Issues in Labour Markets (EN); 6 November 2025, Video „Competition in Labour Markets: Understanding a specific form of buyers‘ cartel“ (available at: Competition in Labour Markets: Understanding a specific form of buyers’ cartel).
[6] Commission Decision of 2.6.2025 relating to a proceeding under Article 101 of the Treaty on the Functioning of the European Union and Article 53 of the EEA Agreement (Case AT.40795 – Food Delivery Services), available at: AT_40795_1262.pdf.
[7] CMA, Competing for talent: What businesses need to know when recruiting workers and setting pay and other working conditions, 9 September 2025, available at: Competing for talent.
[8] Lietuvos Respublikos konkurencijos tarybos atmintinė “Konkurenciją ribojantys susitarimai darbo rinkose“ (2025), available at: Atmintinė 2025 (in Lithuanian).
[9] Case C-324/25, request for a preliminary ruling lodged on 12 May 2025 by the Supreme Administrative Court of Lithuania.
[10] Decision of the Competition Council of the Republic of Lithuania as of 16 November 2021, No. 1S-124 (2021).
[11] See, for example, Catherine L. Fisk, Working Knowledge: Trade Secrets, Restrictive Covenants in Employment, and the Rise of Corporate Intellectual Property, 1800-1920, (2001) 52 Hastings Law Journal 441 (available at: Working Knowledge: Trade Secrets, Restrictive Covenants in Employment, and the Rise of Corporate Intellectual Property, 1800-1920 by Catherine Fisk: SSRN).
Dr. Gintarė Surblytė – Namavičienė
Dr. Darius Miniotas
WALLESS Lithuania