No-Poach Agreements: From National Experience to the Awakening of EU Institutions

Abstract As attention shifts towards labour markets and their competitiveness, this article explores no-poach agreements and their effects. It particularly focuses on enforcement under Art. 101 of the Treaty on the Functioning of the European Union (TFEU), and their recognition as restrictions of competition ‘by object’, akin to traditional forms of cartel conduct such as price-fixing and market-sharing. This survey looks at the enforcement trends across jurisdictions, particularly landmark decisions in Portugal, and the European Commission’s recent fines against Delivery Hero and Glovo in 2025. Account is also taken of the recent preliminary ruling from the Court of Justice of the European Union (CJEU) in the FIFA case and the opinion of the Advocate General in the Tondela case. The restrictive interpretation of the Court, which excludes the application of the Meca-Medina test to restrictions by object, can be offset by a more detailed contextual analysis of this type of agreements. This confirms that restrictions by object and by effect stand in a continuum, whereby the intensity of the evidence required sets them apart.