Although the French National Financial Prosecutor’s Office (PNF) has had jurisdiction over anti-competitive offences since 2020,[1] no criminal proceedings appear to have been brought in relation to non-poaching practices to date. More broadly, criminal enforcement under competition law remains rare, a situation largely explained by the central role played by the French Competition Authority, an independent administrative body with extensive powers to detect and sanction anti-competitive practices,[2] as well as by the effectiveness of its enforcement action.

Nevertheless, competition law has not ignored the interactions between the labor market and anti-competitive practices. Certain previous cases thus concerned wage-fixing agreements or coordinated behaviour between companies or within trade associations, notably the French Competition Authority’s Decision No. 16-D-20 of 29 September 2016 concerning labor market modelling,[3] or the decision upheld by the French Cour de cassation on 13 February 2001 concerning wage-fixing agreements in the market for workers involved in the 1992 Olympic Games.[4]

Abroad, several national competition authorities have already taken actions against practices affecting labor markets, in particular non-poaching and wage-fixing agreements between employers. The United States is undoubtedly one of the countries with the longest history of enforcement – including criminal enforcement – against non-poaching agreements. In particular, the guidelines published jointly by the Department of Justice and the Federal Trade Commission in 2016, according to which “naked” non-poaching or wage-fixing agreements (i.e. agreements outside of any context of cooperation or partnership) may be prosecuted under antitrust law.[5] Several criminal prosecutions have been brought during the 2020s, although some have resulted in acquittals.

Meanwhile, in the United Kingdom, the Competition and Markets Authority (CMA) considers that non-poaching agreements between competing employers are likely to constitute restrictions of competition by object, comparable to market-sharing agreements, while wage-fixing agreements are generally treated as forms of price-fixing agreements.

Under French law, prior to 2025, no decision had addressed general non-poaching agreements between competing companies. In this context, Decision No. 25-D-03 of 11 June 2025 deals with an entirely new issue. For the first time, the French Competition Authority has explicitly ruled on the lawfulness of non-poaching agreements and non-solicitation clauses under competition law.

Non-poaching agreements are no longer contemplated as unfair practices or through labor law disputes. They may now be definitely be assessed as anti-competitive practices where employers agree not to recruit, either actively or passively, employees of other competing companies.[6]

Such agreements can take various forms: they may be sector-wide, bilateral or multilateral, reciprocal or unilateral, and may aim to protect know-how, secure a merger transaction, or stabilise teams in the context of contractual relationships.[7]

The case that gave rise to the French Competition Authority’s decision of 11 June 2025 emerged through a leniency application submitted by one of companies involved, which triggered the opening of an investigation by the French Competition Authority into practices implemented by several companies active in the engineering, technology consultancy and IT services sectors.[8]

The French Competition Authority’s investigation team ultimately identified two separate non-poaching agreements, known as gentlemen’s agreements, involving four companies – the Alten Group, the Atos Group, the Bertrandt Group and the Expleo Group – under which they agreed not to solicit or recruit each other’s employees.[9]

The French Competition Authority eventually imposed a fine of €29.5 million on Alten, Expleo and Bertrandt.[10] Ausy benefited from the leniency program and was exempted from sanctions.[11]

The decision reflects a twofold approach: it classifies general non-poaching agreements as restrictions of competition by object, by assimilating them to market-sharing arrangements relating to sources of supply (I), which are to be distinguished from certain contractual non-solicitation clauses, which are not, per se, anti-competitive and must therefore be analysed on a case-by-case basis (II).

I. General non-poaching agreements as agreements restricting competition by object

Article L420-1 of the French Commercial Code prohibits agreements between undertakings where their object or effect is to prevent, restrict or distort the free play of competition.[12] Article 101 of the Treaty on the Functioning of the European Union (hereinafter “TFEU”) contains similar provisions.[13]

An anti-competitive agreement is established when independent economic operators jointly decide on the conduct they intend to adopt on the market, thereby depriving other undertakings of the right to compete.[14]

This practice of market sharing may take the form of agreements on price fixing, exchanges of information, various practices of consultation regarding the allocation of future contracts or tenders, as well as practices involving the allocation of supply sources, including human resources.[15]

Consequently, in its decision of 11 June 2025, the French Competition Authority treats labor as a source of supply of “strategic importance” in the engineering, technology consultancy and IT services sectors, in the same way as raw materials or strategic suppliers.[16] This classification is explained by the predominantly intellectual nature of the services provided in the sectors concerned, the quality of which depends directly on employees’ skills, as well as by the significant recruitment needs characterising these sectors.[17] As such, the practices at issue directly affected the conditions under which the market operates.

In order to address both staff turnover and their significant labor requirements, undertakings in these sectors tend to enter into ad hoc partnerships, notably in the form of temporary joint ventures or subcontracting arrangements, designed to enable them to respond to certain tenders or to carry out specific large-scale projects.[18]

On 17 September 2024, the French Competition Authority’s investigation team notified the companies involved of allegations arising from the conclusion and implementation on the human resources market of the sectors in question, of so-called non-poaching agreements, also referred to as gentlemen’s agreements, under which they undertook neither to solicit not to hire or recruit each other’s employees, including in the case of unsolicited applications, without the prior consent of the originating employer.[19]

By agreeing not to recruit their competitors’ employees, the undertakings implicitly allocated access to this resource among themselves.[20]

To justify their conduct, the undertakings at stake relied, in particular, on considerations relating to the fairness of commercial relations and the prevention of acts of unfair competition. According to them, the agreements were intended to stabilise partnerships or to prevent opportunistic large-scale poaching practices.[21]

The French Competition Authority rejected this argument, finding that the existence of the disputed agreements was established by the evidence in the case file and that their implementation was specifically intended to prevent the mutual poaching and hiring of the employees concerned.[22]

In this regard, it found that “the agreement between Ausy/Randstad and Alten was intended to restrict the commercial freedom of each of its members with regard to the recruitment of staff, the parties having agreed not to compete on one of the most strategic aspects of their business, namely human resources.” (unofficial translation).[23]

Similarly, regarding the agreement between Bertrandt and Expleo, the French Competition Authority held that “the agreement between the Expleo Group and Bertrandt had the object of restricting the commercial freedom of each of its members with regard to the recruitment of staff, as the parties had agreed not to compete with one another on one of the most strategic aspects of their business, namely human resources.”.[24]

Building on this analysis, the French Competition Authority noted that the agreements were not limited in time or scope, and that they applied to all business managers (in the case of Ausy/Randstad and Alten) or to the entire workforce, including second-tier staff and temporary workers (in the case of Expleo and Bertrandt), regardless of the assignments or clients concerned.[25]

The undertakings challenged the classification of the practices as restrictions of competition by object, arguing that no precedent had sanctioned, on that basis, a non-solicitation agreement concluded between undertakings holding low market shares. They further asserted that the practice in question concerned only a marginal proportion of recruitment and business managers, meaning that the degree of harm required for a classification as a restriction by object would not be met.[26]

In response, the French Competition Authority recalled the criteria established by case law in other industries: the assessment must focus on the content of the agreement, its objectives and the economic and legal context in which it operates. In this regard, it considered that the purpose of the agreement was to restrict commercial freedom in relation to recruitment, as they “had renounced competing with one another on one of the most strategic parameters of their activity, namely human resources”.[27]

The decision is also structured around an assessment of the economic and legal context. The French Competition Authority recalled that, in accordance with European case law, the examination of the economic and legal context, in the context of a by-object classification, is intended solely to verify that the agreement falls within a category of practices that are inherently restrictive. Where it falls within a category expressly covered by Article 101(1) of TFEU, such as the allocation of markets or sources of supply, the contextual analysis may be limited to what is strictly necessary.[28]

In the present case, the French Competition Authority found that the undertakings were competitors in the markets for engineering and IT services and that business managers constituted a key resource for their competitive capacity, which is sufficient to confirm the inherently restrictive nature of the agreements.[29]

Consequently, the agreements in question were classified as restrictive by object, without it being necessary to establish their actual effects on the market. In this regard, the French Competition Authority considered that it was irrelevant whether the agreement was had effectively implemented or whether it concerned only a small proportion of staff, since the non-poaching agreements in question constituted restrictions of competition by object.[30]

Furthermore, the French Competition Authority reiterated that an alleged objective, even if presented as legitimate, cannot neutralise the anti-competitive object of an agreement where it consists in restricting recruitment freedom between competitors,[31] particularly where such practices are widespread. This reasoning is consistent with established case law according to which the classification “by object” does not depend on the parties’ subjective intentions, but on the very nature of the coordination and its inherent capacity to restrict competition.[32]

Thus, the arguments put forward by the defendants regarding the objective of maintaining workforce stability or protecting against allegedly aggressive behaviour could not overcome the structural restriction they introduced in the labor market.[33]

By assimilating the agreements in this case to the allocation of sources of supply, the French Competition Authority classifies these practices as a category of “particularly serious infringements of competition law”, thereby aligning with the position of the Court of Justice of the European Union on non-poaching agreements issue.[34]

Thus, the decision forms part of a broader European trend. A few days earlier, the European Commission, in a decision of 2 June 2025 concerning the food delivery sector, Delivery Hero and Glovo, had characterised, as part of a single and continuous infringement, a general non-poaching agreement concluded between two major European food delivery groups.[35]

Although this decision forms part of a broader set of practices (exchange of sensitive information and geographical allocation), it confirms that labor market agreements are now fully integrated into the EU’s antitrust arsenal.[36]

II. Contractual non-solicitation clauses do not constitute anti-competitive agreements by object

The French Competition Authority also examined non-solicitation clauses included in certain partnerships or subcontracting agreements, which are distinct from the general non-poaching agreements classified as restrictive by object.

In the present case, under the second allegation, the Authority’s investigation team accused Bertrandt and Expleo of having entered into an anti-competitive agreement through non-solicitation clauses inserted into partnership or subcontracting agreements concluded for the provision of services in the automotive sector.[37]

The third allegation also concerned non-solicitation clauses included in subcontracts concluded between Ausy/Randstad and Atos for the provision of services in the aeronautics, aerospace and defence sectors.[38]

The French Competition Authority first examined whether the disputed clauses could be classified as ancillary restrictions to a main transaction. Indeed, where such restrictions are objectively necessary and proportionate to the performance of a lawful main transaction, they may fall outside the scope of the prohibition laid down in Article 101(1) TFEU.[39]

In this regard, the French Competition Authority considered that the evidence in the case did not, in this instance, allow it to carry out such an analysis. In particular, the available information did not make it possible to identify with sufficient precision the main operation to which the clauses would have been ancillary, nor to verify whether they were objectively necessary for its implementation.[40]

As it was unable to classify the clauses as ancillary restrictions, the French Competition Authority therefore assessed the non-solicitation clauses under Article L. 420-1 of the French Commercial Code and Article 101 TFEU, examining, in each case, their content, the objectives pursued and the economic and legal context in which they were set.[41]

First, with regard to the content of the clauses, the French Competition Authority noted that they did not constitute general non-poaching agreements comparable to gentlemen’s agreements. The disputed clauses were included in broader cooperation agreements, notably framework agreements or subcontracts, concluded for the purpose of carrying out specific projects.[42] They were thus intended solely to regulate employment-related aspects within the framework of these contractual collaborations.[43]

Second, the French Competition Authority emphasised that these clauses were strictly limited in their temporal scope. They generally applied for the duration of the project in question and, in certain cases, for a limited period after its completion.[44]

The French Competition Authority also noted that the disputed clauses were accompanied by contractual mechanisms for compensation in the event of a breach, reflecting a logic of protection of contracting parties’ interests rather than an intention to restrict competition in the labor market.[45]

Finally, the French Competition Authority examined the economic context in which the disputed clauses were set. It was observed that the undertakings concerned were cooperating on specific projects requiring close collaboration between their respective teams.[46] In this context, the clauses were primarily intended to regulate relations between contractual partners and ensure the proper performance of the project, rather than to organise a general allocation of labor between competitors.[47]

In the absence of evidence establishing anti-competitive effects resulting from these clauses, in particular a potential restriction on employee mobility or a reduction in competition between companies, the French Competition Authority concluded that these non-solicitation clauses could not be classified as restrictions of competition by object.[48]

Finally, the French Competition Authority also analyzed the existence of a “non-aggression pact” between Ausy/Randstad and Alten.[49] According to the statement of objections, this pact would have had the effect of dividing up certain services on the market and limiting the supply of services due to an artificial restriction of the available workforce.[50] The French Competition Authority nevertheless considered that the evidence on the file did not substantiate this analysis,[51] particularly since the practices in question concerned only a limited proportion of the companies’ workforce and were implemented over limited and reasonable periods of time.[52]

Consequently, in light of these elements, the French Competition Authority concluded “that it has not been established that the parties entered into a non-aggression pact that would be distinct from or go beyond the non-solicitation clauses provided for in their various partnership agreements”.[53]

This decision confirms that non-solicitation clauses included in partnership agreements cannot automatically be classified as anti-competitive agreements. Their assessment requires a concrete analysis of their scope, their objectives and the context in which they are implemented.