EU: AG Emiliou considers no-poach agreements between competitors prima facie as ‘by object’ restriction

In its Opinion delivered on 15 May 2025 in the Tondela Case (C‑133/24), Nicholas Emiliou, the Advocate General (AG) of the Court of Justice of the EU (CJEU), argues that "….no poach-agreements …entered into between …competitors, and unless they are ancillary to a legitimate transaction which is itself not anticompetitive, [have] all the characteristics to be considered prima facie restrictive of competition ‘by object’."

The dispute in the main proceedings concerns a no-poach agreement concluded between football clubs of the Portuguese football league’s first and second divisions during the COVID‑19 pandemic. The referring court essentially asks the CJEU to provide further guidance on the concept of restriction of competition ‘by object’ pursuant to Article 101 TFEU and on the scope of the principles resulting from the Court’s ‘Meca-Medina case-law’ in case the no poach agreement would not qualify as a "by object" restriction.

According to AG Emiliou, a no-poach agreement can be regarded "as a form of sharing a source of supply (in casu, a supply of labour), which is expressly referred to in Article 101(1)(c) TFEU". He thus follows recent practice and guidance from national competition authorities (NCAs) and courts according to which no-poach agreements are generally prejudicial to the normal functioning of competition. For example, in its policy brief the Commission had generally qualified no-poach agreements as restrictions by object. In addition, in the FIFA Case (C‑650/22), the CJEU already referred to Article 101(1)(c) TFEU regarding the collusive behaviour of limiting or controlling "the recruitment of highly skilled workers" as a possible restriction by object.

AG Emiliou holds that the economic rationale of most no-poach agreements between competitors is anticompetitive, because they lead to "suboptimal allocation of human resources, loss of efficiency and/or innovation and lower wages for staff" negatively affecting the "input market (labour market)" and, consequently also the "output market (products or services offered by the undertakings in question)".

Finding that a given agreement belongs to a category of agreements that is typically restrictive of competition is according to the case law of the CJEU however, not the end of the analysis. As AG Emiliou points out, "the content, the legal and economic context and the objectives of the specific agreement at issue should be taken into consideration to verify whether there are specific circumstances that may cast doubt on the harmful nature of the agreement in question" opening the way for an effects analysis and a possible justification.

Based on the specific circumstances of the case, AG Emiliou takes the view that the no-poach agreement in question was not restrictive ‘by object’ and can be justified. In application of the Meca-Medina case law he argues that the objective of the no poach agreement in question – ensuring a fair and orderly end of the 2019/2020 football season during COVID-19 pandemic – was worthy of protection under EU law and absent any equally effective and less restrictive measures necessary and proportionate to that objective.

He therefore proposes that the CJEU answers the referred questions to the effect that Article 101 (1) TFEU must be interpreted as meaning that a no-poach agreement "shall not be classified as restrictive by object, if its genuine rationale was to preserve the fairness and integrity of the sports competition affected by the pandemic; and falls within the scope of the Meca-Medina case law provided that, in particular, it genuinely sought to ensure the integrity and fairness of sports competition, and was necessary and proportionate to that objective."

It still needs to be seen whether the CJEU will follow AG Emiliou's Opinion. If the CJEU does, no-poach agreements will generally be considered ‘by object’ restrictions, unless there are specific circumstances present like in professional sports or if no-poach agreements qualify as ancillary restraints to a legitimate transaction. This would mean that naked no-poach agreements absent specific circumstances would typically be presumed to be anti-competitive and generally cannot be justified. Such practices therefore entail high competition law risks and may be subject to significant fines.

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