NO-Poaching agreements in antitrust law-underestimated danger for companies?
In recent years, so-called "NO POACHING" agreements have become increasingly targeted by the antitrust authorities. But what exactly is behind it, what risks do you hold for companies and why are you problematic on competition law?
Antitrust law also applies to the employee market - a topic that gains explosive in times of shortage of skilled workers. Because employers are in the constant competition for employees. Periods or similar agreements limit the free competition for employees. In the event of a ban on rejects (English "NO POACHING" AGREEME), employers agree to mutually not to reject or hire the workers of the contractual partner. There have always been different forms of "No Poaching" agreements. In the case of so-called “No Hire” agreements, employers undertake not to actively claim or passively employ the contracting party; Both written agreements and oral, informal agreements ("Gentlemen's Agreement") are conceivable. In the case of the ban on coldness ("No Cold-Calling"), it is agreed that at least the employees will not be addressed initiative on a job offer.
Despite the antitrust relevance, the labor markets have so far been neglected by the European and German antitrust authorities.
Recent developments now indicate a change of direction. As the latest practice of the European Commission shows, behaviors on the labor markets are increasingly in the focus of antitrust law. The Commission now wants to consistently proceed against reimbursement or similar agreements limiting the personnel market.
the first antitrust procedure for rejected bans
was searched for the premises of the globally active food delivery services Delivery Hero and Glovo, among other things, due to alleged competitive bans (so-called "Dawn Raid").
On July 23, 2024, the Commission announced that he had initiated a formal antitrust procedure against Delivery Hero and Glovo. The suspicion: The two companies could have made the limited competitive agreement not to collect workers from each other.
Legal opinion of the Commission
The classification of revenue bans as inadmissible under antitrust law has confirmed the European Commission in a "Policy letter" from May 2024. In it, she stands on the point of view that revenue reference agreements regularly fall under the cartel ban according to Art. 101 TFEU. "No Poaching" agreements should have a harmful effect on the labor market. According to the Commission, the salaries of workers are artificially kept at a low level by both forms of such ambiguity reference agreements ("No Hire" and "No Cold Calling"). Not only are the employees damaged individually. Economically, an efficient allocation of the "human capital" is also restricted. Because particularly powerful employees regularly choose to switch to more productive companies in a free competition.
According to the European Commission, such agreements are always intended to impair the competition because it can be classified as “its nature” as harmful to the competition. This accepts a “noticeable” impairment of the competition without the concrete effects of competitive effects to be demonstrated.
“No Poaching” agreements can be admissible in exceptional cases. In the Commission's opinion, however, very high requirements apply. In particular, the "No Poaching" agreement must be absolutely necessary for a proof of antitrust rights (a company purchase, a joint venture or another form of cooperation), so it would be impossible to do the contract or collaboration without the ban on revenue.
Possible sanctions for
companies that are involved in "No Poaching" agreements must expect significant sanctions:
Leavings: In the EU and Germany, companies with fines of up to 10 % of the global group year sales can be sanctioned.
Compensation for damages: Affected employees can complain if they have suffered financial disadvantages through such an agreement.
Loss of reputation: The public perception of companies that participate in contradictory agreements can take considerable damage.
Additional anti -antitrust laws on the labor market,
not only in the case of reverberation bans, caution should be exercised. Agreements between employers in which upper limits for the salaries of employees are determined or "corporate benefits" are excluded are prohibited under antitrust law. Why this is harmful to the competition on the personnel markets is obvious.
It is less obvious to employers that the mere exchange of information already contains anti -antitrust pitfalls. For example, employers exchange ideas about the salaries they pay their employees, this can lead to lower salaries without a clear agreement. If the secret competition is eliminated by the exchange of information, it quickly becomes that the behavior is adjusted.
Conclusion
The Commission has now been followed by the clear words of reverberation bans. The latest development shows that it would be negligent to ignore antitrust requirements on the personnel markets. When designing the contract, for example, a company purchase contract or a joint venture should also be carefully checked with a view to provisions that affect employees. Companies should also refrain from exchanging their employees' salaries.
