In a ruling dated 2 April 2026 (Dutch only), the Appeals Board (College van Beroep, CvB) of the Dutch Advertising Code Committee (Reclame Code Commissie, RCC) held that Booking.com misled consumers. On its platform, Booking.com displays hotel star ratings that have been awarded by the hotels themselves, without making this sufficiently clear to consumers.
Classification of Dutch Hotels
For many years, the Netherlands had a statutory hotel classification system, most recently based on the 2003 Hotel Classification Decree (Hotelclassificatiebesluit 2003). Under this decree, all hotels in the Netherlands were required to have their classification determined by the Hospitality and Catering Industry Board (Bedrijfschap Horeca en Catering).
With the abolition of the sectoral product and industry boards in 2015, the statutory classification system also came to an end. Hotel star ratings nevertheless remained an important criterion for consumers when selecting a hotel. Therefore, effective from 2017, Koninklijke Horeca Nederland (KHN), the largest trade association for the Dutch hospitality industry, introduced a voluntary classification system based on the Hotelstars Union (HSU) standards. The administration of this system was entrusted to Hotelsterren.nl (Dutch only).
Although many Dutch hotels have by now obtained a classification from Hotelsterren.nl, there are still hotels that have not done so. Several of these hotels have assigned themselves hotel star ratings and use those ratings in their advertising, including on Booking.com’s platform. In a ruling dated 6 December 2018 (Dutch only), the RCC already held that hotels mislead consumers when they advertise using self-assigned star ratings without providing an adequate explanation. Already in that ruling, Booking.com was advised not to display self-assigned hotel star ratings on its platform without providing adequate clarification. The present case demonstrates that Booking.com appears to have lost sight of that recommendation.
The Appeals Board’s Ruling
Since the abolition of the statutory hotel classification system, hotels have no longer been required to obtain an official classification. However, this does not mean that hotels are free to use self-awarded hotel star ratings at will. The average consumer still expects hotel stars to reflect a classification awarded by an independent body on the basis of objective assessment criteria. Consistent RCC rulings imply that when a hotel uses self-assigned star ratings without providing an adequate explanation it misleads consumers.
On the desktop and tablet versions of its platform, Booking.com provides a trigger next to a hotel’s displayed star rating. When a user hovers over it with the cursor, a text box appears containing the following message (the tooltip):
Furthermore, there is no graphical indication that the star rating is linked to a tooltip. The thumbs-up icon displayed next to the stars does not, in any event, indicate that the stars themselves are accompanied by a tooltip. While the thumbs-up icon does contain a trigger, it leads to an entirely different tooltip:
The reference in the tooltip accompanying the star rating to the page “How We Work” is provided with a hyperlink to that page. However, once on that page, the visitor must either click through or scroll down to the section headed “Star Ratings, Review Scores and Quality Ratings”. According to the CvB, this section merely states that Booking.com does not verify the classification indicated by the hotel. The CvB considered this explanation insufficient. In particular, the tooltip does not make it clear that an official hotel classification system does not exist in the Netherlands and that hotels frequently assign star ratings to themselves. Moreover, the wording tends to create the impression that star ratings are “usually” awarded by official organisations.
In the mobile version of the platform, the hotel star ratings are not linked to any trigger directing users to the tooltip. Users are therefore not alerted to the existence of the explanatory information. To find that information, they must actively seek it out on their own initiative by navigating to the “How We Work” page and locating the relevant section themselves. Given the number of steps involved, most users are unlikely to do so. Consequently, many users will remain unaware of the essential information concerning hotel star ratings.
The CvB held that Booking.com does not thereby dispel the expectations consumers associate with hotel star ratings. As a result, consumers may wrongly assume that the star ratings displayed on Booking.com’s platform have been awarded objectively by an independent body. This may influence a consumer’s booking decision. The CvB therefore found that the information regarding the origin of the star ratings is unclear within the meaning of Article 8.2(f) of the Netherlands Advertising Code (NRC). Consequently, the advertisements are contrary to Article 7 NRC. For that reason, the CvB upheld the decision of the RCC. Booking.com was recommended to refrain from displaying self awarded hotel star ratings unless it clearly explains that the hotels concerned themselves have determined the number of stars shown for those accommodations on Booking.com’s platform.
Commentary
The Dutch Advertising Code
The CvB qualified Booking.com’s conduct as misleading advertising on account of the unclear information concerning “the nature, characteristics and rights of the advertiser or its intermediary, such as its identity, assets, qualifications, status, recognition, affiliation, connections, industrial, commercial or intellectual property rights, or its prizes, awards and distinctions”, as referred to in Article 8.2(f) of the NRC. This provision corresponds in substance to Article 6:193c(1)(f) of the Dutch Civil Code (Burgerlijk Wetboek) and Article 6(1)(f) of EU Directive 2005/29 concerning unfair business-to-consumer commercial practices. Advertising of this kind is prohibited under Article 7 NRC. In substantive terms, that provision corresponds to Article 6:193b(1) of the Dutch Civil Code and Article 5(1) of Directive 2005/29/EC.
Practical Implications of the Ruling
If Booking.com displays hotel star ratings on its platform that have not been awarded by an independent body on the basis of objective criteria, it must make this explicitly clear. Failing to do so misleads consumers. This transparency obligation applies not only to the desktop, laptop and tablet versions of the platform, but also to its mobile version. Moreover, hotels themselves will also need to take the ruling discussed above into account in their own online and offline advertising.
This decision merits attention, particularly because, following an extensive substantive debate, the RCC and the CvB have reaffirmed their earlier interpretation regarding the misleading nature of self-awarded hotel star ratings. However, this leaves open the question whether the clarification recommended by the RCC and the CvB constitutes the appropriate remedy to protect consumers sufficiently against the identified unfair commercial practice. As follows from the 4finance judgement of the EU Court of Justice, Directive 2005/29 must be interpreted in such a way that the objective of ensuring a high level of consumer protection is not jeopardised (para. 29).
Bringing a Complaint Before the RCC
Pursuant to Article 18 of the NRC, both undertakings and consumers are entitled to file a complaint with the RCC regarding misleading or aggressive advertising. Filing such a complaint is straightforward and inexpensive. In addition, decisions are generally issued within a relatively short period of time.
The decision takes the form of a non-binding recommendation and is not directly enforceable. If such a recommendation is ignored, the matter may be brought before the civil courts. In doing so, the court is not bound by the decision of the Advertising Code Committee or the Board of Appeal and retains its own discretion in assessing the case. Courts will generally take decisions of the RCC and the CvB seriously, given their expertise and standing in evaluating advertising-related issues. In practice, recommendations issued by the RCC and the CvB are almost always followed. The 2024 Annual Report (Dutch only) reports a compliance rate of 96%. This high percentage is likely attributable, at least in part, to the fact that the RCC monitors compliance and publicly discloses cases in which a recommendation has not been implemented.
A recent research initiative by members of the Antitrust Alliance examined the growing number of actions taken by European competition authorities in relation to employment practices. This note summarises the results of that project, including an analysis of key enforcement activity across EU Member States and the United Kingdom. Participating firms within the ATA (Pierstone – Czech Republic, DVAN – Netherlands, WALLESS – Lithuania and Estonia, Abreu – Portugal, Lupicinio – Spain, Wardynski Partners – Poland, Waselius – Finland and Beale & Co – UK and Ireland) answered detailed questionnaires about the application of competition law to labour-related agreements and restrictions. Annex 1 to this note summarises the highlight findings from this survey. This article draws on a multi-jurisdictional Antitrust Alliance study to examine how this approach is being applied across the EU and the UK. The study points to a clear trend. Competition authorities across Europe are increasingly treating labour market coordination as cartel conduct. In particular, wage-fixing and no-poach agreements are analysed as buyer-side restrictions, typically amounting to “by object” infringements under Article 101 TFEU and the Chapter I prohibition. This reflects a broader shift in competition policy, in which labour is treated as an input market and employers as competing purchasers of labour.
Enforcement against restrictive labour market agreements has become an increasing priority for competition authorities worldwide. In the United States, this has been reflected in an explicit policy focus on labour mobility, including the Executive Order issued by President Biden on 9 July 2021, which encouraged the Federal Trade Commission to consider measures limiting the use of non-competition and related restraints. These developments have contributed to greater attention being paid to the use of competition law as a tool to address wage suppression and restrictions on hiring. In April 2025, the US DoJ secured its first criminal conviction in a labour market antitrust case for a wage fixing conspiracy.
These initiatives will be seen by many as a timely one and some will welcome this focus by competition authorities as connecting with the concerns of ordinary people. There is currently immense pressure on the cost of living caused by factors such as the conflict in the Middle East. Protecting employees’ take-home pay is critical in assisting families to navigate challenging economic times. Businesses, on the other hand, face inflated costs for inputs which may augment the incentive to “cheat” on employment costs and some economists argue vehemently in favour of non-competes (See for example “Why I’m a skeptic of a non-compete ban”, Brian Albrecht, available here: Why I’m a Skeptic of a Noncompete Ban – Truth on the Market and Sarah On Lam, Thomas Lennard and Scott Wallsten, “Is a Ban on Non-Competes Supported by Empirical Evidence?”, Fordham Journal of Corporate & Financial Law, Volume 29, Issue 1 (2023)).
B. Harm of non-poach and wage-fixing agreements: a by-object restriction?
The Commission and the UK CMA each consider that no-poach and wage-fixing agreements depress salaries and other benefits, as undertakings will have less incentive and ability to attract talent by offering competitive wages. Through wage-fixing agreements, undertakings will be able to maximise joint profits at the expense of their employees by setting wages at an agreed level. This will have a detrimental impact on the employees, whose interests may be paramount (even possibly above those of the consumer) for the purpose of the Commission’s or local authorities’ anti-competitive analysis. To be clear, there are four principal practices which regulators regard as anti-competitive:
Wage-fixing agreements: agreements between companies to fix, limit, or coordinate employee compensation or benefits (e.g. pensions, life insurance, company automobiles). The Commission views these as akin to arrangements between buyers to fix the price of acquiring a supply (or, in other words, a buyers’ cartel.
No-poach agreements: agreements between companies not to solicit or hire each other’s employees. The Commission views these as a form of agreement between buyers to share the source of supply (i.e. an agreement by A with B that it will not seek labour services from the sources where B procures these services – B’s own employees). Non-poaching agreements are likely to reduce labour market dynamism, resulting in wider negative impacts on the market, including restrictions on workforce talent moving across industry and a potential reduction in wages due to lessening in competition.
No-hire agreements: this is a more extreme form of a non-poach restriction. Whereas a non-poach agreement will restrain active soliciting of another undertaking’s employee, a “no-hire” agreement will also bar any offer of employment where the employee herself has initiated contact (e.g. responding to an advert for a vacancy). The difference between a NPA and NHA is analogous to an active and passive sales ban. In literature, no-hire is often conflated with no-poach type restrictions and where the Commission refers to the unlawfulness of no-poach, it is safe to read that as also including no-hire, even though the two are technically different.
Exchange of competitively sensitive information: competitors can collude by sharing confidential and sensitive information about their future intentions in the labour market, as well as exchanging information about current and future pay-levels and employee benefits.
In most cases, European regulators have classified these types of employment restriction as restrictions by object – the most serious type of infringement. Under the TFEU, restrictions by objects are those that, by their very nature, are harmful to competition – there is no need to examine the effects of such agreements. The Commission has stated that: “[w]age-fixing and no-poach agreements each fall “within one of the situations referred to in Article 101 TFEU”, respectively, as a form of purchase price fixing under Articles 101(1)(a) TFEU and as a form of supply market sharing (supply-source sharing) under Article 101(1)(c) TFEU, and therefore the analysis of the legal and economic context can indeed be limited to what is strictly necessary.”
Whether or not a restriction is deemed “by object” in any specific case needs to be considered based on the context of the agreement and the specific provisions in the agreement. An employment related restriction agreement may escape a “by object” classification if the parties can demonstrate that it has pro-competitive effects. However, those pro-competitive benefits must be “demonstrated, relevant and specifically related” to the agreement concerned, and “sufficiently significant”, so that they raise a reasonable doubt as to whether the agreement concerned reveals a sufficient degree of harm to competition, and, therefore, as to its anticompetitive object.
C. Do defences exist to justify employment restrictions?
Potentially, yes. We see three broad potential defences although it is clear that none will be easy to apply.
(a) Individual exemption
The first is reliance on the individual exemption defence; parties may be able to argue that the restriction satisfies the four-point test laid down in Article 101(3), the domestic competition laws of the EU Member States and s 9 of the UK Competition Act 1998. In summary, this provides that an anti-competitive restrictive agreement may still benefit from the prohibition under competition law where that agreement:
improves production/distribution or promotes technical/economic progress;
allows consumers a fair share of the resulting benefit;
does not impose restrictions that are not indispensable to achieving these goals; and
does not eliminate competition for a substantial part of the products in question.
In its antitrust briefing on labour restrictions, the EU Commission makes clear that while it is open to the parties to argue that such restrictions have pro-competitive benefits, this will not be easy to demonstrate. Wage-fixing and no-poach agreements tend to reduce wages artificially. Whilst lower wages may reduce prices in the long-run, the argument could be made they are pro-consumer. However, there are two problems: (i) mere cost savings for businesses are insufficient by themselves to satisfy Article 101(3), (ii) any pro-competitive effects are generally taken into account only if they take place in the same market of the anti-competitive effects (the relevant market here being that for the purchase of labour services by employers, not for the onward sale of goods and services which the employees help produce).
Equally, we consider it difficult for parties to these types of restrictions to argue for the applicability of a block exemption. We have heard the argument made, for example, that an employment restriction may be available if it forms part of a vertical agreement (e.g. a distribution agreement) (in the EU context, Commission Regulation (EU) 2022/720 of 10 May 2022 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to categories of vertical agreements and concerted practices (VBER). This Regulation entered into force on 1 June 2022. In the UK context, The Competition Act 1998 (Vertical Agreements Block Exemption) Order 2022), perhaps agreeing that the distributor and supplier will not poach or hire each other’s staff for the duration of the agreement. It must be remembered that these exemptions apply only to restrictions affecting the markets in which the goods and/or services are produced and/or sold. The labour market is separate from those thus making it unsafe to assume the safe harbour would also apply to labour market restrictions. In any event, where both the supplier and distributor may compete to hire the same staff, their relationship is clearly no longer vertical. They are rival buyers of labour services. As we noted above, the Commission views wage-fixing as a form of price fixing (for the cost of labour supply) and sharing source of supply (companies agreeing between themselves not to actively compete to engage workers) as practices which are harmful by their nature.
However, exceptionally such arguments may succeed. In the context of wage-fixing and non-poaching agreements, parties may look to argue that the agreement has a legitimate objective, such as protecting investment in training employees without fear that they will later be hired by competitors and protecting companies’ trade secrets. Due to the significant potential anti-competitive effect of these agreements, it will be challenging to demonstrate that they do not amount to a restriction by object. Parties will struggle to demonstrate that the objectives could not be achieved by a less anti-competitive method, e.g. NDAs, and the net efficiencies of such agreements are difficult to quantify. For example, while non-poaching agreements may protect investment in employee training, they may diminish the incentive for employees to invest in their own training as they will not be looking to attract alternative employment.
(b) Ancillary restraints
Parties to horizontal relationships, such as a research joint venture, may argue that they would only assign key personnel to the venture if they were sure that other parties would not poach their best employees. Parties to vertical relationships, such as supply relationships, may argue that they would not enter into such an agreement without a no-poach agreement in place. Employers may argue that without these agreements, they would risk losing their investment in employees, their trade secrets, and may be unable to fulfil wider obligations due to lack of staff. Wage-fixing or no-poach agreements may only amount to an ancillary restraint if they meet the below conditions:
there is a main non-restrictive transaction;
the restraint is directly related to that transaction;
the restraint is objectively necessary for the main transaction’s implementation; (Objectively: given the nature of the agreement and market characteristics, undertakings in a similar situation would not have participated in the main transaction without the relevant restraint (Article 101(3) Guidelines, paragraphs 29 and 18(2)))
(Necessary: the main transaction would be impossible to carry out without the restriction (Case C-382/12 P MasterCard Inc. and Others v Commission, EU:C:2014:2201));
the restraint should be proportionate to the main transaction (no less restrictive means to allow that transaction to take place) (Guidelines on the application of Article 81 (3) of the Treaty, 2004/C 101/08 (“Article 101(3) Guidelines”), para 29).
In our study, we found that all of the European jurisdictions surveyed recognised the possibility of an ancillary restraints defence, principally along these lines. In Spain, one case (Case C/0880/17 OTPP / MÉMORA) involved a non-compete and non-solicitation clause included in a company acquisition agreement. The latter clause prevented the sellers from hiring or attracting key employees from the target company after the sale. The CNMC accepted this agreement as an ancillary restriction, understanding that it protected the stability of the acquired company and prevented the sellers from affecting the continued viability of the acquired target company.
(c) Collective agreements
We should note the long-standing exemption from competition law for collective labour agreements. In Albany International BV v Stichting Bedrijfspensioenfonds Textielindustrie (Case C-67/96) [2000] 4 C.M.L.R. 446 7 the Court of Justice of the European Union held that the scope of EU competition law excludes collective agreements where this (i) concluded between management and labour, or their representatives; and (ii) aimed at improving working terms and conditions (See “Collective Agreements and EU Competition Law: Do we need an exemption?” Shaun Bradshaw, University of East Anglia UEA Law School April 2019 available at Collective_Agreements_and_EU_Competition_Law_-_Do_we_need_an_exemption.pdf.). The application of competition law to these arrangements would frustrate the social policy objective contained in collective agreements. Our survey of members revealed that this exemption has, in most cases, fed into national competition law (this is the case for Estonia, Finland, Lithuania, Czechia, Netherlands and Poland). Our Portuguese member firm did not consider that national legislation would lead the PCA automatically to ignore collective agreements and these would need to be examined under the individual exemption test of Article 10/1 (equivalent to Article 101(3) TFEU). The UK and Ireland have a less strong collective bargaining tradition – at least in recent times – than other member states. However, our view is that an English or Irish court would apply the Albany exemption to national competition law.
We agreed with the comment of our Lithuanian member firm that collective agreements should always be analysed carefully. For example, we could envisage situations where competing firms used collective agreement discussions to agree that increased salary costs should be passed on to customers rather than absorbed by the firms themselves. A case highlighted by our Netherlands member firm also highlighted that the exemption only operates in discussions between employers and labour representatives (See ACM Press Release ”ACM suspends investigation into possible wage-fixing cartel between supermarkets after conclusion of collective agreement”, available at ACM suspends investigation into possible wage-fixing cartel between supermarkets after conclusion of collective agreement | ACM). The ACM fined supermarkets who sought to agree a common position in those negotiations (limiting wage increases to 2.5%) through the auspices of a trade association. The investigation was ultimately suspended by ACM after the parties found an agreeable resolution to the negotiations. This ACM case highlights how undertakings can fall into the trap of forming an illegal wage-fixing agreement while negotiating collective agreements, even where the joint position agrees to raise living standards.
D. Enforcing against restrictive practices in the labour market
(a) EU level enforcement
In May 2024, the European Commission published its Competition Policy Brief, Antitrust in Labour Markets (available here: adb27d8b-3dd8-4202-958d-198cf0740ce3_en), setting out its position on anti-competitive conduct in labour markets. The Commission considers that wage-fixing and no-poach agreements are likely, in most cases, to constitute restrictions of competition by object under Article 101 TFEU by analogy with buyer cartels (the buyers being employers as purchasers of labour services). It treats wage-fixing as a form of purchase price fixing within the meaning of Article 101(1)(a) TFEU and no-poach agreements as a form of supply-source sharing within Article 101(1)(c) TFEU. The EU’s brief makes clear that most labour markets are national or sub-national. Therefore, the bulk of the enforcement work has been carried out within the national jurisdictions. Wage fixing is characterised as purchase price fixing, and no poach agreements as market allocation, both typically by object infringements under Article 101 TFEU. The Commission has explicitly endorsed national enforcement and positioned labour market collusion as part of mainstream cartel policy.
This said, there have been a number of interventions by the EU Commission in relation to employment-type activity. For example, in June 2025 the Commission fined food delivery companies Glovo and Delivery Hero over €300 million for agreeing not to poach each other’s staff (See Press Release here: Food delivery cartel). These restrictions were part of a wider scheme to align commercial conduct and share sensitive information. In November 2024, the Commission announced inspections of data centre construction companies allegedly in relation to agreements not to solicit employees.
It should be remembered, however, that the EU’s tradition of protecting worker mobility goes back much further than this. Not only is the right of workers to free movement across EU frontiers enshrined in the Treaty, the famous Bosman judgment ended the ability of football clubs to prevent the movement of players to new clubs once their contracts expired, noting that this constituted an unlawful restriction on free movement under Article 39(1) of the EC Treaty (now Article 45(1) of the TFEU) (Case C-415/93, Union Royale Belge des Sociétés de Football Association ASBL v Jean-Marc Bosman).
(b) National level enforcement
To date, enforcement directly addressing employment practices has largely been driven by national competition authorities (NCAs) rather than at EU level. This enforcement pattern is unsurprising. Labour markets are often national, regional or local in scope, making national competition authorities more likely than the Commission to investigate wage-fixing and no-poach agreements. This article therefore focuses on how such agreements are being addressed by national authorities across a range of European jurisdictions.
A high-profile NCA example (also referenced in Section B(i) below) is the decision of the Belgian Competition Authority of 2 July 2024 concerning the private security services sector. Three providers within the sector were fined a total of over €47 million for participation in a cartel between 2008 and 2020 involving price-fixing, bid rigging and no-poach arrangements. The authority found that the companies had agreed not to actively recruit each other’s staff, restricting labour mobility and limiting employees’ ability to move to competing employers in search of improved terms. The no-poach arrangements were characterised as restrictions of competition by object.
What is perhaps more surprising is the refocusing of competition law towards the avoidance of harm to workers. Recent academic commentary has highlighted a gradual shift away from an exclusive emphasis on consumer welfare toward greater recognition that harm to labour markets, including through wage suppression and restrictions on mobility, may itself justify competition law intervention. In this framing, labour is treated as a factor of production subject to buyer power, and wage fixing and no poach agreements are analysed as forms of cartel conduct affecting the competitive process directly, rather than as remote or indirect social effects. The shift has also been registered in the UK. In September 2025, the Competition and Markets Authority published its own guidance note, “Competing for Talent” (Available here: Competing for talent), which again emphasised the need for employers to avoid wage-fixing, no-poach / no-hire agreements as well as sharing of commercially sensitive information about hiring / employment terms. Not only was this aligned with the EU’s own thinking, but the title was highly reflective of how authorities see labour markets: undertakings in competition to recruit the best workers, paying fair terms. The CMA is by no means the only NCA to have issued such guidance, as the findings set out in Annex 1 to this note detail.
Across Europe (including actions by the EU Commission and UK CMA), competition authorities have converged rapidly on the view that wage fixing, no poach agreements and collusive information exchange in labour markets constitute hardcore competition infringements. Enforcement since 2021 has been driven primarily by national authorities, but with clear doctrinal alignment around the treatment of labour as an input market and employers as buyers of labour.
i. Belgium
Belgium has taken one of the clearest positions to date. In July 2024, the Belgian Competition Authority fined three private security companies more than €47 million for cartel conduct that included explicit no poach agreements, alongside price fixing and bid rigging (see earlier ATA article written by Carman Verdonck and Gaetan Roelants: The Belgian competition authority’s focus on BID RIGGING: Fines imposed on physical persons and guide on bid rigging issued for public consultation – February 2026 | Antitrust Alliance). The authority treated no hire arrangements as restrictions by object, equating them with market sharing cartels and emphasising their direct harm to worker mobility and wages. This decision squarely framed labour as an essential input market and rejected any need for effects analysis.
ii. United Kingdom
The UK has now moved from advocacy to enforcement. In March 2025, the CMA adopted its first infringement decision addressing labour market collusion, fining sports broadcasters £4.2 million for repeated exchanges of freelance pay information (Available here: Anti-competitive behaviour relating to freelance labour in the production and broadcasting of sports content – GOV.UK). The CMA found multiple concerted practices with the object of restricting competition, treating wage coordination via information exchange as cartel conduct under orthodox Chapter I principles. The case confirms that labour market collusion in the UK will be pursued through standard cartel doctrine rather than bespoke labour rules.
iii. Portugal and Spain
Portugal represents the most sustained programme of labour market enforcement in the EU. The Portuguese Competition Authority has issued multiple infringement decisions penalising wage fixing and no poach agreements, including in professional sport and technology consulting. In February 2025, Inteum Group were fined by the Portuguese Competition Authority (“PCA”) for entering into bilateral no-poach agreements in the technology consulting sector. The Portuguese Competition Court (TCRS) upheld this decision on 27 March 2026. Portuguese cases explicitly characterise these arrangements as buyer side cartels and are reinforced by guidance targeted at HR professionals, making Portugal a leading example of systematic labour market enforcement.
Even more recently, on 30 April 2026, the Court of Justice of the European Union considered a preliminary reference concerning a fine of €11.3 imposed by the PCA on the Portuguese football league and participating clubs for agreeing not to recruit players who had terminated their contracts during the COVID 19 pandemic (CD Tondela, Case C-133/24 available here: EUR-Lex – 62024CJ0133 – EN – EUR-Lex). The referring court asked whether that “no poach” arrangement infringed Article 101(1) TFEU. The CJEU held that such an agreement is capable, in principle, of constituting a restriction of competition “by object”, given that it directly affects a key parameter of competition, namely player recruitment and the strength of rival teams in sporting competitions. However, the Court emphasised that the assessment depends on the content of the agreement, its legal and economic context, and its objectives, and must ultimately be carried out by the national court. Importantly, the Court recognised that preserving the integrity and stability of sporting competitions during the pandemic could constitute a legitimate objective. It indicated that, in appropriate circumstances, such an agreement may fall outside Article 101(1) where the restrictions are strictly necessary and proportionate to that objective. Where, however, the agreement is found to be a restriction by object, the only available route to justification is under Article 101(3), and it is for the national court to determine whether those conditions are satisfied on the facts. The judgment confirms that no poach arrangements remain highly likely to be treated as serious restrictions under EU competition law, while leaving open a narrow route for justification in genuinely exceptional circumstances. In that sense, it reflects a generally strict approach to labour market restrictions, notwithstanding the extenuating circumstances of the pandemic.
iv. Central and Eastern Europe
Several Central and Eastern European authorities have been early movers. Poland has fined sports clubs for collectively suppressing player salaries and treat salary caps as horizontal price fixing, while also pursuing suspected no poach schemes in retail logistics. Lithuania has sanctioned no poach rules embedded in industry codes of conduct and wage fixing in professional sport, though some decisions remain under appeal. These cases show both ambition and doctrinal testing at the margins.
In 2024, the Czech Competition Authority carried out an investigation of an alleged no-poach agreement between Duvenbeck and EuWe, marking a clear shift from prevention to active enforcement. The investigation started after an anonymous tip-off from an aggrieved employee, which triggered an unannounced dawn raid. In 2021, the Hungarian Competition Authority fined an employment association €2.8 million for requiring them to charge minimum amounts for their services and prohibiting members from poaching each other’s employees.
v. Nordic and other Member States
Nordic authorities have combined enforcement with policy coordination. Finland has prohibited no poach clauses restricting player mobility in professional sport, while a joint Nordic policy report in 2024 confirmed that wage fixing and no poach agreements are generally unlawful. Other authorities, including the Netherlands and Germany, have focused on warnings and guidance rather than fines to date, but have made clear that coordination on pay or hiring outside collective bargaining is prohibited.
E. Beyond competition law: the importance of labour law
It is important to remember that employees are generally not considered to be undertakings. For that reason, restrictions agreed between employees and Employers will frequently impose contractual obligations requiring employees not to set up in competition with their employer or join competitors for a certain period. Technically, such agreements are unlikely to fall within the scope of EU or UK Competition Law as these cover only agreements between two or more undertakings, as an employee typically does not constitute an “undertaking” (unless the specific facts dictate otherwise) .
Our research reveals that employment law steps into this area in order to regulate the permissibility and extent of restrictive covenants. For example, in the UK and Ireland, it may be permissible to impose post-term non-compete obligations. However, these will only be enforceable by the employer to the extent that the employer pursues a legitimate interest of the employer. The restriction cannot be imposed for an excessive duration or over an excessive geographical area. The UK is currently considering introducing legislation on this subject, as we reported in a recent article for ATA (available here: Protecting labour markets in the UK: Understanding the new law – March 2026 | Antitrust Alliance).
Across other jurisdictions surveyed, the picture was mixed. Portugal is stricter than the UK and its labour laws prohibit any form of post covenant restraint. On the other hand, the employment laws of Spain, Czech Republic, Lithuania and Estonia are silent on the question of post-term non-competes, leaving this to competition law. This could create a gap in employee protection and mobility where the employee does not enjoy status as an “undertaking” and the restriction is set out in an agreement between the employee and the employer (in most cases an undertaking). The Netherlands and Finland are some way between the two extremes. The Netherlands imposes an outright ban similar to Portugal with a narrow and conditional exception for secondment agreements. Poland exercises a kind of rule of reason similar to that of the UK. Under the Finnish Employment Contracts Act (55/2001), non-compete agreements are permitted only for a particularly significant reason, and the employer must pay compensation to the employee corresponding to 40% of the employee’s salary for an agreed restriction period of up to six months. If the restriction period exceeds six months, the compensation must correspond to 60% of the employee’s salary.
F. The future
Against a backdrop of rising cost of living, we predict it is likely that enforcement efforts in this area will only increase. Competition authorities are growing as keen to protect employees as they are to safeguard the interests of consumers.
Businesses must ensure they exercise caution when negotiating agreements where one party proposes a restriction on soliciting staff. Such restrictions can appear anodyne and have for decades been commonplace. However, there is a widespread wave of enforcement against such restrictions. Aside from the risk of fines, there is no reason why parties potentially harmed by the restrictions – likely employees – could not sue the parties for damages. Even aside from this, the presence of potentially unlawful restrictions could even create a loophole allowing one of the parties to reject the application of the agreement as a whole. As part of their compliance efforts, businesses should review and where appropriate revise existing agreements which contain potentially offending provisions.
A risk assessment is also recommended to identify the types of agreements where counterparties may request or require the inclusion of such provisions. Part of the danger for firms is that it may not feel wrong to include a mutual non-solicitation agreement in – say – a joint venture agreement where both parties will become acquainted with the other’s individual staff. However, cases such as the Portuguese Football League case indicate that sympathy from regulators may be in short supply.
Annex 1 below sets out in more detail summaries of our findings across the jurisdictions surveyed.
Annex 1
The below table compares how wage fixing and non-poaching agreements are treated across European jurisdictions (including the UK). For a full analysis of these forms of agreement, please see our Europe at a Click map available on the ATA website.
Jurisdiction
Any national legislation / rules addressing non-poaching and wage-fixing?
Has the authority issued guidelines on labour law and competition law?
Are these agreements anti-competitive under national competition law and labour law?
Are there any exemptions or justifications for non-poaching or salary agreements?
Under what circumstances might such agreements be considered ancillary to a legitimate commercial agreement?
Examples of cases or decisions
Czech Republic
Employment law permits the use of competition clauses between the employer and the employee. While these do not by themselves constitute a violation of competition laws, they may amount to such if a number of employers agree to these clauses in unison.
Non-poaching agreements are an extension of the employee’s obligations beyond the scope of the Labour Code and are thus usually unenforceable in practice.
Yes, a fact sheet called Competitive Aspects Of Labour Market Agreements published in 2023 – link
Competition Law
Yes – both may constitute a breach of competition laws.
Labour Law
Employment law permits the use of competition clauses concluded between the employer and the employee. These competition clauses do not constitute a violation of the competition laws. However, they may constitute a violation if a number of employers agree to conclude these competition clauses in unison for the same period of time with the employees. On the other hand, non-poaching agreements are not directly regulated by employment law and as such are not explicitly prohibited. However, they do constitute an extension of the employee’s obligations beyond the scope of the Labour Code and are thus usually unenforceable in practice.
The ban does not apply to agreements which satisfy the criteria for individual exemption test:
a. contribute to the improvement of production or distribution of goods or to promotion of technical or economic development, and provide a proportionate share of these benefits to consumers;
b. do not impose restrictions on competitors which are not necessary to achieve the objectives in a.; and
c. do not enable competitors to exclude competition in a substantial part of the product market (the “Consumer Benefits” exemption).
The concept of ancillarity may be applicable to certain situations if:
i. The restraint in question is ancillary to a more comprehensive or separate agreement involving the same parties,
ii. The restraint is directly related to and reasonably necessary to fulfil the main agreement,
iThe main agreement itself, notwithstanding the restraint in question, is not anticompetitive.
In 2024, the Czech Competition Authority carried out an investigation of an alleged no-poach agreement between Duvenbeck and EuWe, marking a clear shift from prevention to active enforcement. The investigation started after an anonymous tip-off from an aggrieved employee, which triggered an unannounced dawn raid. In 2021, the Hungarian Competition Authority fined an employment association € 2.8 million for requiring them to charge minimum amounts for their services and prohibiting members from poaching each other’s employees.
Estonia
Non-poaching and salary agreements are addressed by the general competition law position. There are no specific regulations governing these agreements.
Only insofar as laid down in the Pindi Kinnisvara case (opposite).
Competition Law
Non-poaching and salary agreements are treated as a form of anti-competitive agreements under Estonian competition law.
Labour Law
The Employment Contracts Act addresses agreements on restraint of trade clauses in the context of employment contracts concluded between an employer and an employee, which, however, cannot be considered as agreements between employers.
Nevertheless, the Employment Contracts Act deals with agreements between employers that are specifically related to the entry into employment contract with user undertaking. Conditions which hinder an employee of an undertaking who performs their duties by way of temporary agency work from entering into an employment contract with a user undertaking after finishing temporary work in the user undertaking are void (§ 61 of the Employment Contracts Act). A condition that prevents the conclusion of an employment contract may directly prohibit the employee from taking up employment with the user undertaking or indirectly influence the employee’s desire to enter into a contract with the user undertaking. For example, a condition that prohibits the employee from requesting information from the user undertaking regarding job vacancies or a condition whereby the user undertaking commits not to inform the temporary worker about employment opportunities within the company.
Thus, employment law focuses more on non-compete agreements between employees and employers. Nevertheless, it also addresses agreements between undertakings, complementing competition law with a regulation related to the user undertaking.
Agreements may be exempt through the Consumer Benefits exemption and the exemption for agreements of minor importance. It is likely that wage-fixing and non-poaching agreements will not constitute an agreement of minor importance.
An agreement may be considered ancillary if they meet the below criteria:
1) There is a primary transaction that does not impose restrictions;
2) The restraint is directly connected to the primary transaction, subordinate to its execution and inseparable from it;
3) The restraint is objectively necessary to implement the main transaction; and
The restraint is proportionate to the main transaction – there must be no less restrictive means to achieve the transaction.
In Estonia, there have been no court judgements regarding non-poaching and salary agreements. However, the Estonian Competition Authority has addressed a non-poaching agreement in the so-called Pindi Kinnisvara case, where Pindi Kinnisvara entered into a cooperation agreement with a company, imposing an obligation on the company to conclude a non-compete agreement with its direct performer.
According to this agreement, the performer was prohibited from competing with Pindi Kinnisvara during the contract period and for six months after the contract’s termination. The Authority concluded that agreements between employers not to compete for employees are to be regarded as agreements that harm competition within the meaning of § 4 of the Competition Act. Employees and their costs are key competitive parameters that enable companies to compete more effectively. When employers restrict employees’ ability to move to another company, they forgo competition on an important cost component. In cases involving such agreements, it is not necessary to prove the effects, as they are inherently anti-competitive. Employers may apply non-compete clauses to employees in accordance with the conditions specified in the Employment Contracts Act, provided these clauses are included in the employment contract. However, this must not be done as part of an agreement between employers, as such agreements would restrict labor mobility and distort competition in the labor market.
Finland
There are no specific regulations addressing non-poaching or salary agreements. The general competition law position will apply.
The competition authorities of the Nordic countries (Denmark, Sweden, Norway, Iceland and Finland) published a Joint Nordic Report (“Joint Nordic Report”) in 2024 on Competition and Labour Markets.
Non-poaching agreements may qualify as a restriction of competition prohibited under the Competition Act. Salary agreements not covered by the labour market exception could fall within the Competition Act..
Labour Law
In general, employment laws do not include provisions concerning relations between employers and, thus, do not address non-poaching or salary agreements. In a recent collective agreement in the healthcare industry, a prohibition on non-poaching is included. The agreement is applicable during the period 1 January 2023 – 30 April 2025 and is binding also on such public sector entities, which do not qualify as undertakings in the sense of the competition law.
Agreements may be exempt through the ancillary restraints doctrine.
The Consumer Benefits exemption applies.
Non-poaching agreements ancillary to a corporate acquisition may concern only the management and key employees of the undertaking concerned and must be limited to active recruiting only. Any ancillary restraints must be necessary and proportionate in order to be permitted.
In 2019, the FCCA has given a decision concerning a case where Finnish ice hockey teams playing in the national league had agreed on restrictions on the player’s possibility to transfer to/from a Finnish ice hockey team playing in KHL (an international professional ice hockey league). According to the FCCA, the agreement constituted a prohibited exclusionary practice. Consequently, the FCCA ordered the ice hockey teams to stop applying the agreement under penalty of fine.
The Parliamentary Ombudsman of Finland has given a decision in a case concerning a practice of the city of Helsinki to require in some public procurements that private health care providers may not use employees who have recently been employed by the city. According to the Ombudsman, the practice was against the Non-discrimination Act (1325/2014) and the obligation to guarantee the observance of basic rights and liberties and human rights under the Constitution.
Ireland
Employment restrictions would likely infringe the prohibition on S 6 of the Competition Act 2002 (analogous to Article 101 TFEU).
Not at this time. This is not mentioned in the most recent Annual Report of the Competition and Consumer Protection Commission (CCPC).
Competition Law
Most commentators classify non-poach and salary agreements as restrictions by object. This is highly likely to be correct as Ireland’s competition law follows EU Law principles.
Labour Law
Similar to that of the UK: an employer may impose restrictions on employees preventing them from taking up employment within a reasonable geographic scope and duration (after the employment relationship ends) and which relate to the same goods and services as those provided by the former employer. This is known as the restrictive covenant doctrine and is judged case-by-case.
The Consumer Benefits exemption potentially applies.
Agreements may also be exempt through the ancillary restraints doctrine.
The position in Ireland follows EU law, under which these agreements may be considered permissible if they are directly related to and necessary for the implementation of a legitimate business transaction.
.
Not to our knowledge in relation to competition law. However, as mentioned above, in Net Affinity v Coghlan (see Q1(iv)) in an employment case, the Irish High Court refused to uphold a 12 month non-compete clause (including both active and passive sales to resellers) but imposed a 12 month restriction on the former employee’s ability to approach customers (notwithstanding that an active sales ban had not been included in the contract).
Lithuania
Non-poaching or salary agreements are governed by general competition rules, i.e. the Law on Competition. Typically, agreements of this nature are treated as non-compete agreements between undertakings, which are usually treated as prohibited agreements.
Prohibited agreements are explicitly banned under Article 5 of the Law on Competition[1]. Agreements between undertakings to refrain from soliciting each other’s employees and fixing employee wages and any other benefits fall within the scope of this prohibition.[2]
Additionally, Article 15(1) of the Law on Competition prohibits any conduct that contradicts fair business practices and good customs, particularly when such conduct could harm another undertaking’s ability to compete.
The Law on Competition specifically lists acts that are considered unfair methods of competition, including the prohibition against proposing to the employees of a competitor to terminate their employment contracts or refrain from performing their duties, either for personal gain or to the detriment of the competing undertaking. However, this is applicable only in cases where a single undertaking solicits employees of its competitor and in no cases there can be an agreement which establishes a mutual obligation not to solicitate each other’s employees.
In 2023, the Competition Council published a Memorandum on restrictive agreements in labour markets[3]. The memo sends a message to the market that companies must compete fairly not only for the goods and services they sell[4], but also to attract employees. This guidance clearly states that all companies are competitors in the labour market, therefore any agreements between those companies which interfere with the employees’ ability to freely choose their workplace may be considered as restricting competition by their object.
Since there is limited court practice on non-poaching and salary agreements, courts have not yet issued specific guidelines on these issues which could be considered as precedent. The legal framework and enforcement in this area remain underdeveloped, and the absence of significant precedents has led to a lack of formal judicial guidance on how such agreements should be interpreted or enforced under competition law. Consequently, businesses and legal practitioners rely heavily on general competition law principles and the oversight of the Competition Council in these matters, which employs a rather strict approach.
Competition Law
An agreement between competitors not to solicit each other’s employees would be deemed a prohibited agreement under Article 5 of the Law on Competition. Non-poaching and salary agreements in all cases are considered anti-competitive, yet certain exemptions apply.
Labour Law
No, this issue is governed exclusively by competition law.
However, it is also important to distinguish between different rules on non-compete established by the competition law and labour law in this context. Labour law allows for the conclusion of non-competition agreements between employers and employees, as well as the protection of confidential information, including trade secrets of the company. A non-competition agreement typically restricts the employee’s ability to work for competing undertakings after leaving the former employer, with the provision of compensation to the employee as part of the agreement. Furthermore, employees are generally subject to financial penalties if they disclose confidential information, as outlined in the contract between the employer and employee.
While competition law governs the broader context of anti-competitive agreements between undertakings, labour law regulates the relationship between employers and employees, including the use of non-compete clauses and confidentiality obligations.
Agreements may be exempt through the ancillary restraints doctrine.
The Consumer Benefits exemption applies.
These agreements may be considered permissible if they are directly related to and necessary for the implementation of a legitimate business transaction, such as a merger or acquisition. The assessment in such cases focuses on whether the non-poaching or salary agreement is essential to the success of the transaction and whether it is proportionate in scope and duration.
In 2021, the Competition Council fined the Lithuanian Basketball League (LKL) and 10 basketball clubs for an agreement to suspend the 2019-2020 championship due to the COVID-19 pandemic, during which the clubs also decided not to pay players any salaries or monetary compensation for the remainder of the season[5]. However, the Vilnius Regional Administrative Court (VAAT) annulled the Competition Council’s decision. The court found that the evidence—particularly the audio recordings from LKL meetings and email correspondence—did not support the conclusion that there was a prohibited anti-competitive agreement. The court considered the specific circumstances of the sports sector and the impact of the COVID-19 pandemic on the clubs’ contractual obligations with players. It ruled that the Competition Council had not sufficiently substantiated its claim of an anti-competitive agreement, nor had it properly assessed the impact on competition.
In 2022, the Competition Council found that the Lithuanian Association of Real Estate Agencies (LNTAA) and its 39 members had entered into a non-poaching agreement, agreeing not to solicit each other’s clients and brokers, thereby restricting competition between them[6]. The LNTAA’s Code of Ethics, adopted in 2015, prohibited member agencies from recruiting real estate brokers from one another, deeming it unethical to even offer a meeting or job opportunity to a competitor’s broker. For this breach of the Law on Competition and the Treaty on the Functioning of the European Union (TFEU), the Competition Council imposed fines totalling to EUR 969,060. This case is still pending, with the dispute ongoing before the court.
Netherlands
Under national law, it is not permitted for a secondment agreement to prevent a seconded employee joining the client after secondment.
Other national laws or regulations addressing non-poaching or salary agreements do not exist.
In marginal 75, agreements to limit salaries and other employment conditions such as allowances or bonuses are mentioned as an example of labour market agreements that can limit competition. ACM Guideline for cooperation between competitors
In this speech Martijn Snoep explained that higher raw-material costs and inflationary pressure may lead to employers collectively trying to suppress wages or other labour conditions. Wage cartels would distort the well-functioning of the labour market. The fact that cost-price benefits achieved through collusion will, at least in theory, be passed on to consumers in a competitive market does not justify ignoring these types of cartels. Competition authorities do not have a mandate to redistribute income from workers to consumers through collusion leading to market power on a purchasing market.
Competition Law
Agreements between companies about purchasing labour from employees or hiring self-employed persons constitute purchasing agreements which may be anti-competitive.
Agreements to limit salaries and other employment conditions, e.g. allowances or bonuses, can limit competition.
Labour Law
In English the ‘belemmeringsverbod’ reads as follows:
“Article 9a Ban on obstructions
1. The person making labour available shall not impede the formation of an employment contract after the end of the secondment between the seconded labour force and the person to whom he has been seconded.
2. Every stipulation contrary to subsection 1 shall be null and void, with the exception of a stipulation pursuant to which a reasonable fee is payable by the person to whom the labour force has been seconded to the person who has seconded the labour force for the services rendered by the latter in connection with the secondment, recruitment or training of the labour force in question.”
In Dutch competition law the concept of “non-poaching” is not defined.
Non-poaching An exception to the ‘belemmeringsverbod’ mentioned above applies. In fact, it is allowed for a client and the secondment employment agency to agree that if the client hires the temporary worker after the secondment, the client will owe a reasonable compensation (based on the recruitment and training costs and lost profit margin). However, it is still quite unclear what can pass as reasonable compensation. Other national laws or regulations addressing do not exist
Salary agreementsSpecial employment law provisions do not exist
The Consumer Benefit exemption is potentially applicable.
Agreements may also be exempt through the ancillary restraints doctrine. The previous case-law of the EU and CJEU will be followed.
If there is any discussion at all about whether non-solicitation clauses constitute a secondary restriction, it will probably only take place in the context of mergers and acquisitions. In that case, the ‘Commission Notice on restrictions directly related and necessary to concentrations’ will be used to determine whether the clause in question is permitted as a secondary restriction. In other cases, the test will probably be in accordance with the Mastercard judgement.
As far as we know, a comprehensive non-poaching agreement in the healthcare sector has come to light through a civil court case. See judgment of 4 May2010 of the Court of Appeal of ‘s-Hertogenbosch in case ECLI:NL:GHSHE:2010:BM3366.
There are no specific national competition rules on these forms of agreement – they are subject to the general rules of competition law.
The PCA published its explanations on the labour market in July 2024 (Zmowy i nadużycia na rynku pracy. Prawo konkurencji a sprawy pracownicze – poradnik [Collusion and abuse in the labour market. Competition law and employee matters – guidelines] (“the Guidelines”). The Guidelines are available (in Polish only) at: https://uokik.gov.pl/Download/725.
Competition Law
These agreements may violate Article 6(1) of the Polish Competition Act: prohibition on concluding agreements restricting competition.
Labour Law
Employment law itself does not explicitly regulate non-poaching or salary agreements but emphasizes the protection of employee rights, including fair remuneration and the freedom to choose employment.
Agreements directly between an employer and an employee that have entered into an employment contract (e.g. non-compete covenants) are permissible under certain conditions (but are effective only between the parties to a particular employment contract). They must meet the requirements of proportionality, compensation and time limits (such non-compete clauses prohibit employees from taking up employment with a competitor of their current employer after terminating their employment or from performing tasks for other entities during their employment). In principle, non-compete obligations in employment contracts are not the subject interest of competition law (as they do not constitute an agreement between undertakings), but a contract between an employer and an employee.
Non-poaching agreements may fall within the standard de minimis exception under European competition law. The de minimis exception does not apply to price-fixing agreements.
The Polish Competition Act applies the Consumer Benefits exemption.
This may apply if such agreements are ancillary to another business agreement permitted under competition law. However, they should be directly related and necessary for the conclusion of the main commercial agreement and be limited in time.
Such arrangements require individual analysis and legal assessment in each case with regard to necessity and a close relationship with the main legal agreement.
The PZM is responsible for adopting the regulations for speedway competitions. These regulations set maximum salary rates that sports clubs participating in speedway league competitions could pay to their riders. The Polish Extra League, on the other hand, participated in the development of these regulations. As a result of the regulations introduced, none of the speedway clubs participating in the Polish Extra League and other speedway leagues could offer the riders a salary above a predetermined amount. These restrictions were introduced in 2013 and were in force from the 2014 season.
The PCA found that the setting of maximum salaries limited competition between sports clubs (violation of Article 6(1) of the Polish Competition Act). They could not freely compete for the best speedway riders, even if they were able to offer them higher earnings. Interestingly, the actions of the Polish Motor Association and the Polish Extra League may also have affected the situation of clubs and riders from other countries. Polish competitions are among the best in the world, and many foreigners ride for Polish clubs. As a result, players’ salaries in Poland may have been a point of reference in other countries. Therefore, the agreement between the PZM and the Polish Extra League also constituted a violation of EU competition law (Article 101 of the TFEU).
Portugal
The Portuguese Competition Act does not establish specific rules addressing non-poaching or salary agreements. These are, however, subject to general competition law.
The Portuguese Competition Authority (“PCA”) in 2021 published a Paper on Labor Market Agreements and Competition Policy, accessible here, as well as a guide on Best Practices in Preventing Anticompetitive Agreements in Labor Markets, accessible here (both with an English version)
The Paper addresses the legal framework and the precedent decisions regarding no-poach and wage-fixing agreements and their effects on the conditions of competition on the labour market and downstream product markets as well as on consumer welfare.
The Guide on Best Practices in Preventing Anticompetitive Agreements in Labor Markets is aimed at companies and human resources professionals and others involved in the recruitment process in companies. The objective of the Guide is to raise awareness to the risks of entering into anticompetitive agreements and of best practices in the hiring of employees and the definition of salary conditions.
Competition Law
These agreements are a form of anti-competitive agreements between undertakings within the meaning of article 9, Portuguese Competition Act.
Labour Law
Agreements between employers not to hire and/or solicit workers are null and void under the Portuguese labour law. In accordance with Article 138 of the Portuguese Labour Code, under the heading ‘Limitation of freedom of work’, the law determines the nullity of agreements between employers that prohibit the hiring of each other’s workers who provide or have provided work for them, as well as obliging, in the event of hiring, the payment of compensation.
However, the Labour Code does not provide for any administrative offence proceedings or the payment of fines by companies in breach of the rule.
Nevertheless, civil liability may arise if the injured workers bring an action for damages against the companies involved, for example following a decision by the PCA or another competition authority that such an offence has been committed.
The Portuguese Competition Act applies the Consumer Benefits exemption.
Agreements may also be exempt through the ancillary restraints doctrine
In the context of Portuguese competition law, non-poaching and salary agreements may be considered ancillary to a legitimate commercial agreement when they meet certain conditions outlined by both the PCA and the European Commission’s guidelines, looking at whether the agreements are related to the commercial transaction and necessary for its realisation.
The PCA in April 2024 sanctioned a large technology consultancy company with a fine of €278.000,00 for anti-competitive practices in the labour market between 2016 and 2021. It was concluded that the behaviour associated with the targeted groups constituted practices restricting competition in labour markets, namely a distribution of sources of supply (no-poach), in the provision of IT consultancy services on national territory.
Spain
There is no specific legislation on this area.
General prohibitions under the Spanish Competition Act 15/2007 (as amended) will apply to non-poaching.
The Basque Competition Authority has published a “Practical Guide on the Impact of Competition on the Labor Market”. May 30, 2023[7].
This document, prepared by the Basque Competition Authority, analyzes how certain labor market practices can affect competition and offers recommendations to avoid violations of competition regulations.
Also the Catalonian Competition Authority (ACCO) has published the document: “Competition Policy and Labor Markets”, January 2025, ES 35/24, which is available in English version[8].
Competition Law
Non-poaching agreements may amount to restriction of competition prohibited under Article 1 of the Competition Act.
Salary agreements not covered by the labour market exception may fall within the Competition Act.
Labour Law
In general, Spanish employment laws do not include provisions concerning relations between employers and, thus, do not address non-poaching or salary agreements.
The Consumer Benefits exemption applies.
Agreements may also be exempt through the ancillary restraints doctrine.
The legality of these agreements depends on their necessity and proportionality in relation to the main agreement.
Case S/0120/08 “Transporters”, brought by the CNC (formerly the CNMC) regarding non-solicitation clauses. The CNC found that the companies involved agreed not to hire employees from other companies involved in the agreement without prior “permission.” Thus, if a company participating in the cartel were interested in hiring an employee from another company participating in the agreement, prior consultation with the affected companies would be required to assess the appropriateness of such hiring. The CNC concluded that such practices constituted a violation of Article 1.1 of the LDC and Article 101 of the TFEU, as they distorted competition by replacing corporate autonomy with collusion between competitors.
The same conclusion was reached in Case S/0086/08 “Professional Hairdressing” dated March 12, 2011. The companies involved in this matter were charged with violating Article 1 of the LDC (Spanish Commercial Code) for having established agreements for the exchange of sensitive commercial information and for agreeing not to recruit workers, thus forming a cartel that operated from 1989 to 2008. Reports on the annual meetings of the companies involved were found, demonstrating an agreement preventing competitors from hiring salespeople. Based on these facts, the CNMC concluded that these practices constituted anticompetitive conduct, aggravated by the exchange of information intended to set market prices.
In Case C/0880/17 OTPP / MÉMORA, a non-competition clause and a non-solicitation clause were included in the company acquisition agreement. Regarding the latter, the clause prevented the sellers from hiring or attracting key employees from the other company after the sale. The CNMC accepted this agreement as an ancillary restriction, understanding that it protected the stability of the acquired company and prevented the sellers from affecting its organisational structure.
Similar rulings were issued in Case C/1245/21 ONTIME / ACOTRAL. In this case, non-competition, non-solicitation, and confidentiality clauses were included. The CNMC considered that these ancillary restrictions did not pose a threat to effective competition in the markets, but with respect to the non-solicitation and confidentiality clauses, it established that “if they exceeded 2 years, they would go beyond what was necessary for the notified concentration operation, and therefore should not be considered an ancillary restriction.”
Sweden
Although not explicitly addressed in Swedish employment law, non-poaching or salary agreements may infringe the Swedish Competition Act. In particular, agreements between undertakings that are competitors are likely to infringe Chapter 2 Section 1 of the Swedish Competition Act (Art. 101 TFEU). On the other hand, collective bargaining agreements between a trade union on one side and an employer or an association of employers on the other side, are typically not infringing competition law, see also under 2 iv, below.
The competition authorities of the Nordic countries (Denmark, Sweden, Norway, Iceland and Finland) published a Joint Nordic Report (“Joint Nordic Report”) in 2024 on Competition and Labour Markets.
These restrictions can be unlawful. Chapter 1 Section 2 of the Swedish Competition Act exempts agreements between employers and employees relating to wages and other conditions of employment. There is limited judicial guidance on the interpretation of the labour market exemption. However, the prevailing interpretation is that it relates to collective bargaining agreements negotiated by trade unions and employers’ associations.
Labour Law
Wage fixing and no poach provisions are not explicitly addressed in Swedish employment law, non-poaching or salary agreements may infringe the Swedish Competition Act.
It should be mentioned that the labour market in Sweden differs from most European countries in terms of regulation and function. The degree of unionisation is high in Sweden. Also, a relatively high proportion of companies are members of employers’ organisations. In Sweden, close to 90 per cent of the companies are members of such organisations.
The Swedish Competition Act exempts agreements between employers and employees relating to wages and other conditions of employment. There is limited judicial guidance on the interpretation of the labour market exemption. However, the prevailing interpretation is that it relates to collective bargaining agreements negotiated by trade unions and employers’ associations.
To our knowledge, there is no Swedish case law on this issue.
However, in a case concerning non-compete clauses related to a merger, the Patent and Market Court of Appeal, like the lower court, rejected the Swedish Competition Authority’s request to fine the parties to the concentration for a too far reaching non-compete clause. The Swedish Competition Authority argued that the clauses equalled an infringement by object (and not by effect). The courts held that the clauses in question were ancillary restraints—restrictions directly related and necessary to the merger—and not intended to prevent, restrict, or distort competition.
As the Competition Authority had not established de facto effects of the non-compete clauses in the specific matter, the courts dismissed the Swedish Competition Authority’s claim, see PMT 7498-16
Short-term contracts in the Swedish Ice Hockey League
In September 2012, the Swedish Competition Authority launched an investigation into a ban imposed by Svenska Hockeyligan AB (SHL AB) on short-term contracts for ice hockey players during the 2012–2013 season. SHL AB, which represents clubs in Sweden’s top ice hockey league, prohibited its member clubs from signing short-term contracts with the American NHL players during the NHL lockout.
The Swedish Competition Authority found that this ban limited competition among clubs and harmed consumers, media rights buyers, and sponsors. It imposed interim measures preventing SHL AB from enforcing the ban until a final decision was made. However, SHL AB appealed, and the Market Court ruled in its favour. The Court held that competition law applied to the case, and that it did not fall under the exemption for agreements related to labour markets, see above. The court concluded that the ban was a general restriction on short-term contracts—not specifically targeting NHL players—and was proportionate and legitimate for maintaining a fair league. As a result, the Swedish Competition Authority’s interim decision was annulled. The NHL lockout ended shortly afterward, and the Swedish Competition Authority closed its investigation.
See the Swedish Market Court, ruling 2012-12-03 in Case A 2/12 [2012]
Collective agreements
One case that illustrated the scope of the aforesaid provision, relates to a collective bargaining agreement where employers (distribution companies) accepted not to retain freelance distributors if it was possible for the employer to enter into an individual employment agreement instead. The Swedish Competition Authority (matter no. 555/1996) ordered the employers/distribution companies to not apply the provision as it restricted the freedom for such undertakings to determine how their distribution operations should be conducted, and that the provision made it more difficult for new distribution companies to enter the market.
UK
To date, there is no specific legislation on non-poaching or salary agreements. However, recent developments from the Competitions and Markets Authority (CMA) have shown an increasingly interventionist approach.
The CMA generally regards wage fixing or no poach or no hire agreements as serious restrictions of Chapter I of the Competition Act 1998.
Yes, in September 2025 the UK CMA released the guidance note “Competing for Talent: What businesses need to know when recruiting workers and setting pay and other working conditions”, link: Competing for talent.
Competition Law
The CMA has confirmed that non-poaching and salary agreements are anti-competitive by their object. In one case, they have enforced against such restrictions.
Labour Law
Similar to that of the UK: An employer may impose restrictions on employees preventing them from taking up employment within a reasonable geographic scope and duration (after the employment relationship ends) and which relate to the same goods and services as those provided by the former employer. This is known as the restrictive covenant doctrine and is judged case-by-case.
The Consumer Benefits exemption applies.
Agreements may also be exempt through the ancillary restraints doctrine.
There may be limited circumstances in which a form of non-poach or wage-fixing could, in theory, be considered a form of ancillary restraint. Whether and in what circumstances agreements may be considered ancillary remains uncertain while labour cases are yet to be considered by the CMA.
To be ancillary, non-poaching and salary agreements must be objectively necessary for the agreement/merger.
In March 2025, the CMA adopted its first infringement decision addressing labour‑market collusion, fining sports broadcasters for repeated exchanges of freelance pay information[9]. The CMA found multiple concerted practices with the object of restricting competition, treating wage coordination via information exchange as cartel conduct under orthodox Chapter I principles. The case confirms that labour‑market collusion in the UK will be pursued through standard cartel doctrine rather than bespoke labour rules. Further UK investigations in media production and other sectors are ongoing.
[1] Part 1 of article 5 of the Law on Competition: “All agreements which have as their object or effect, or which restrict or threaten to restrict competition, are prohibited and shall be null and void from the time of their conclusion, including an agreement to fix (fix), directly or indirectly, the prices or other terms and conditions of purchase or sale of a particular product”.
[2] See the memorandum of the Competition Council (in Lithuanian), made available here: <https://kt.gov.lt/uploads/documents/files/Atmintin%C4%97(3).pdf>.
[3] The memorandum of the Competition Council (in Lithuanian) is made available here: <https://kt.gov.lt/uploads/documents/files/Atmintin%C4%97(3).pdf>.
[4] As per Part 1 of Article 5 of the Law on Competition.
[5] The Competition Council‘s decision (in Lithuanian) is made available here: <https://www.kt.gov.lt/uploads/docs/docs/5028_43656a32d64ad45f1a1545d6fb2a8261.pdf>.
[6] The Competition Council’s decision (in Lithuanian) is made available here: <https://kt.gov.lt/uploads/docs/docs/5520_76a43218e5ae22499c5274a8993038f1.pdf>.
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
