European Commission Cartel Decision: Key lessons on no-poach agreements and minority shareholdings

On 2 June 2025, the European Commission imposed fines totalling €329 million on Delivery Hero and Glovo for their participation in a four-year cartel in the online food delivery sector. It is the first time the Commission has sanctioned a labour market cartel, and it is also the first instance in which fines have been imposed for the anti-competitive use of a minority shareholding in a rival company. This insight will focus on two of the core issues addressed by the Commission: no-poach agreements and the risk of collusion resulting from minority shareholding.

The Case

Delivery Hero acquired a minority stake in Glovo in July 2018 and progressively increased its interest until taking sole control in July 2022. During this period, the two companies engaged in a series of practices that the Commission found to be contrary to Article 101 of the Treaty on the Functioning of the European Union (“TFEU”) and Article 53 of the European Economic Area (“EEA”) Agreement. Both provisions prohibit agreements or concerted practices that may affect trade and prevent, restrict or distort competition within the Single Market.

The Commission identified three core elements of the infringement: 

1. The companies agreed not to solicit or hire each other’s employees, initially through reciprocal no-hire clauses in their shareholders’ agreement, which later expanded into a broader non-solicitation arrangement.
2. The companies engaged in the exchange of commercially sensitive information, including commercial strategies, pricing, capacity, costs and product characteristics, which allowed them to align their market behaviour.
3. The companies allocated geographic markets by agreeing not to enter each other’s national markets, removing existing overlaps and coordinating their expansion into new territories.

Together, these practices were found to have removed significant competitive constraints between two of the largest players in the European online food delivery market. Both Delivery Hero and Glovo admitted their participation and settled the case with the Commission, resulting in a 10 per cent reduction in the fines imposed.

No-Poach Agreements Under Increasing Scrutiny

The decision is particularly significant for its treatment of no-poach agreements. When Delivery Hero acquired its initial minority interest in Glovo in 2018, the shareholders’ agreement contained limited reciprocal no-hire clauses covering certain employees. These eventually evolved into a general agreement not to approach or solicit one another’s staff. The Commission concluded that such clauses, by their very nature, restricted competition in labour markets by impeding the free movement of workers. Unlike other restraints that require an analysis of effects, the Commission considers no-poach agreements to be restrictions of competition “by object” unless they can qualify as an “ancillary restraint” as part of a wider legitimate transaction.

It has long been commented upon that the enforcement action which occurred in this case would materialise, and as such, the outcome was in many respects foreseeable. For example, even back in 2006 there was controversy around no-poach agreements in Ireland. The then Irish Competition Authority wrote the the Higher Education Authority (HEA) and certain universities regarding a draft protocol to address issued around alleged poaching of key research staff. 

Further, in 2021, then-Commissioner Vestager signalled that wage-fixing and no-poach agreements were firmly within the Commission’s sights. In 2022, senior officials emphasised that labour markets would face greater scrutiny in the years ahead. That same year, the Commission carried out unannounced inspections at the premises of Delivery Hero and Glovo, repeating those raids in 2023. The investigation was formally opened in July 2024.

The Commission’s thinking was further set out in its May 2024 Competition Policy Brief on Antitrust in Labour Markets. This stated that wage-fixing and no-poach arrangements had the potential to restrict competition by their very nature and that they were to be treated as restrictions “by object.” It also referenced the Commission’s Horizontal Agreement Guidelines in noting that any exceptions would be limited to such an agreement being considered an ancillary restraint. For a no-poach agreement to qualify as an ancillary restraint, four criteria must be met: 

1. The main objective of the transaction must not be anti-competitive or restrictive in nature;
2. The no-poach restriction directly relates to that transaction;
3. The no-poach restriction is objectively necessary; and
4. The no-poach restriction is proportionate to the main objective of the transaction.

In 2024, the Commission extended its scrutiny to other industries, launching dawn raids in the data centre construction sector across Europe. This included inspections at major Irish contractors such as Sisk and Jones Engineering, in relation to suspected no-poach deals among construction firms engaged in large-scale projects.

Most recently, in May 2025, Advocate General Emiliou delivered his opinion in Case C-133/24, concerning agreements among Portuguese football clubs during the COVID-19 pandemic to limit player transfers. The Advocate General confirmed that in exceptional circumstances, narrowly tailored non-solicitation clauses may be justified and are not necessarily restrictions “by object.” However, the Delivery Hero/Glovo case is distinguishable: here the no-poach clause did not exist in isolation but was coupled with extensive exchanges of commercially sensitive information and coordinated market allocation. These additional infringements made it easier for the Commission to conclude that the arrangement amounted to an outright cartel. The contrast highlights that standalone no-poach clauses will be more difficult to characterise as by-object infringements, but that in practice, when combined with other anti-competitive practices, they are likely to be treated as such.

Minority Shareholdings and Competition Risks

Equally significant is the Commission’s finding that Delivery Hero’s minority shareholding in Glovo facilitated collusion. The illegal cartel began in 2018 when Delivery Hero’s stake, reported to be around 15 per cent, granted it access to Glovo formal agreements, board meeting documents, participation in the shareholder meetings and director meetings and a position on the board of directors. According to the Commission, this enabled Delivery Hero “to obtain access to commercially sensitive information and to influence decision-making processes in Glovo, and ultimately to align the two companies’ respective business strategies.” By 2022 Delivery Hero obtained sole control of Glovo. The Commission further explained that “owning a stake in a competitor is not in itself illegal, but in this specific case it enabled anti-competitive contacts between the two rival companies at several levels.”

Typically, the primary legal analysis of minority shareholdings from a competition law perspective focuses on whether the acquisition of a minority shareholding confers sufficient influence to trigger merger notification requirements. In this case, Delivery Hero’s initial acquisition did not give it control, and therefore did not fall within merger control rules. However, the Commission has made clear that this does not shield non-controlling investors from the application of Article 101 TFEU. Where a minority interest facilitates the exchange of information or alignment of strategies between competitors, it may constitute unlawful collusion.

The conduct of minority shareholder board representatives must also be carefully managed, particularly where the shareholder remains active in a competing business. Clear protocols should govern any ongoing engagement between the representative and the shareholder to reduce antitrust risk. This is particularly relevant for private equity investors who may hold minority stakes across a portfolio of competing companies.

The Commission has further underlined that misuse of competitively sensitive information, whether in a minority or majority acquisition scenario, can now lead directly to cartel findings. It is typical to design minority protections that provide investors with strategic involvement without conferring “decisive influence,” such as limited veto rights. However, these protections must be structured with care. If they extend into areas that enable coordination of competitive behaviour, they risk turning a legitimate investment into an anti-competitive arrangement.

Lessons for Businesses

The Delivery Hero/Glovo decision serves as a timely reminder that competition law extends well beyond collusion in relation to the supply of goods and services. The Commission is now firmly focused on the labour market, viewing no-poach arrangements as cartels that directly harm competition. It would be prudent for businesses to review their practices and agreements to ensure compliance with competition law. Close attention should be given to any no-poach agreements in place and ensure they qualify as “ancillary” to a legitimate arrangement and therefore fall outside the scope of competition laws. 

It also underscores the risks that can arise from minority investments in competitors. Even absent control, such investments can create opportunities for anti-competitive information exchanges and strategic alignment. Merger control may not be triggered, but the substantive prohibitions of Article 101 TFEU remain fully applicable. For investors, this means structuring minority protections with caution, establishing clear safeguards for competitively sensitive information, and ensuring that board representation does not become a conduit for collusion.