Minority Stakes and No-Poach Agreements in the Crosshairs of the European Commission and French Competition Authority

On 25 July 2025, the European Commission (EC) published its decision (adopted in June) sanctioning Delivery Hero and Glovo for participating in a cartel in the online food delivery sector. This is the first time the EC has sanctioned anticompetitive use of a minority share in a competing business and a cartel in the labour market. With its strict stance on information exchange, the EC also sent a clear warning to companies with significant minority investments and board representation in competitors. The EC’s approach may potentially frustrate an appreciable part of the strategic investment value in acquiring minority stakes in competitors in the first place.

The EC found that, “while a cross-shareholding between competing undertakings is not illegal in itself", the companies have used the minority shareholding to “progressively remov[e] competitive constraints between [them] and replac[e] competition with multilayered anticompetitive coordination”. 

The EC took issue with a range of specific practices, each of which could, on its own, amount to an infringement in future cases. These practices included:

• Reciprocal non-solicitation and no-hire agreements (the No-Poach Agreements);
• The exchange of commercially sensitive information and Delivery Hero’s participation in key strategic decisions; and
• The allocation of geographical markets between the two companies.

The EC underscored that these practices were “among the most harmful restrictions of competition”, and took this into account when determining the fines of roughly €223m for Delivery Hero and €106m for Glovo.

On 11 June 2025, the French Competition Authority (FCA) also published its first decision on no-poach agreements, concerning practices implemented by four companies in the engineering, technology consulting and IT services sectors. The FCA found that two no-poach agreements implemented by Ausy and Alten on the one hand, and Bertrandt and Expleo on the other hand restricted competition on the French market. The FCA sent a clear signal that human resources are an essential competitive parameter in engineering, technology consulting and IT services sectors, especially given the skills shortage and significant turnover in these sectors.

First EC and FCA decision on no-poach agreements between competitors 

• The No-Poach Agreements consisted of two components: The Shareholders’ Agreement accompanying Delivery Hero’s initial acquisition of a stake in Glovo included several “de facto reciprocal no-hire clauses”, which imposed an obligation on each company not to hire “key employees” from the other company, even if the employees were to actively apply for an open position (the No-Hire Clauses). 
• After Glovo attempted to recruit staff from Delivery Hero in October 2018, a senior Delivery Hero executive emailed a senior Glovo executive proposing to “find some kind of non-solicitation agreement”. “[To] not kill the relationship with poaching”, the companies entered into an agreement preventing them from actively approaching each other’s employees (the Non-Solicitation Agreement). This covered all employees, regardless of whether they were seen as “key employees” or not.

These limitations took place in a context where, according to the EC, “active solicitation from competitors was notably seen as a way to access […] expertise" and had as an object to restrict “competition for talent", which Glovo estimated to be “scarce and in high demand". The FCA sent a similar signal about scarceness of workforce in this segment.

The EC saw the No-Poach Agreements as restrictions of competition by object and treated them as “a form of sharing of the sources of supply (akin to a buyer cartel)”. They also emphasized that “the no-hire obligations were not objectively necessary for, or proportionate to, the relevant investment agreements". No-poach agreements are, in principle, more likely to be considered objectively necessary and proportionate in the context of an acquisition of control to ensure the viability of the target business after closing, provided they are appropriately limited in scope and duration. Finally, the EC underscored that the mere possibility for employees to pursue roles with other companies did not alter its assessment.

The EC highlighted that it did not need to prove these infringements had negative effects on the market; the very existence of such agreements was enough to find an infringement. Nevertheless, the EC underlined that no-poach agreements cause economic harm since “declining job reallocation rates have been linked to declining productivity and hence slower GDP growth".

The FCA’s approach is very much aligned. According to its decision, “the parties have renounced recruiting each other's personnel, which constitutes a key competitive parameter between them, given the strategic importance of human resources in the sectors concerned" and “such practices aim to divide sources of supply and, as such, constitute agreements expressly prohibited". 

The FCA qualified this as an infringement by object too. Nevertheless, the FCA did consider that a couple of other non-solicitation clauses in the same case did not have an anticompetitive objective, notably given their limited material and temporal scope, the legitimate aim pursued (prevention of the disruption of ongoing IT projects), and there was no evidence for relevant effects either.

Information exchange between competitors facilitated by minority shareholding 

The EC’s decision is highly relevant also because of its strict stance on information barriers required in case of a minority investment in a competitor. The EC found that between September 2018 and July 2022, when Delivery Hero announced its acquisition of sole control over Glovo, the companies exchanged commercially sensitive information, which allowed them “to align and influence their respective conduct on the market". 

The fact that Delivery Hero held a minority shareholding in Glovo did not alter the EC’s assessment that such information exchange amounted to an infringement by object, as “Delivery Hero could have protected its minority shareholding rights and financial interests through its representative(s) in the board of Glovo, without any exchange of commercially sensitive information between that representative and staff in Delivery Hero". 

Nevertheless, in the determination of the amount of the fine, the EC took into account two periods where the exchange of commercially sensitive information was less intense due to a divergence in views regarding the geographical development of the companies’ activities, by only using a percentage of the value of sales during those periods to establish the basic amount for the fine.

The information exchanges were two-sided and occurred through direct exchanges of emails, WhatsApp messages, and documents.

They were facilitated by the fact that Delivery Hero had a representative on Glovo’s Board of directors, who forwarded the information shared with him to Delivery Hero managers seemingly without any information sharing barriers or protocols. This exchange was usually followed by an internal discussion within Delivery Hero on the content of the information received.

The EC enumerated a number of examples of information that it considers to be commercially sensitive:

• Pricing, including detailed pricing methodologies, guidelines on delivery fees, discussions on free delivery, discounts, cashbacks, funding of subscriptions, and other pricing strategies and specific fee structures.
• Production capacities, including information on delivery efficiency and methods (including dispatch algorithms), logistics operations, and determination and bundling of restaurant delivery zones.
• Commercial strategy, including details of new service development, forecasts and breakdowns of EBITDA, strategic goals for volumes, profitability, strategies for delivery of online orders, marketing models and tools, customer acquisition insights, and financing matters such as levels of monthly average “burn”.
• Forecasts of demand and sales, including projections and tools for estimating future orders and gross sales.
• Cost structure, including data on customer acquisition costs, per-order costs, general cost overviews (without specifying what these included), compensation per deal, and cloud costs.

Coordination on market allocation as a core infringement

Finally, the EC also determined that the two companies progressively agreed to stop competing in various EU Member States:

• Each company refrained from entering Member States where the other company was present.
• They coordinated which company should enter a market where neither company was active yet.
• They started removing geographical overlaps between them.

The EC reiterated that market sharing is a restriction of competition by object “which by its very nature is harmful to the proper functioning of normal competition" and that this applies also if a company would potentially not have entered a certain market even absent the market sharing arrangement.

Key compliance lessons for companies with minority interests in competitors

The decision highlights several important takeaways for competition law compliance for businesses, in particular those that hold minority positions in competitors: 

• Minority stakes are not in themselves illegal but can create antitrust concerns if there are no robust safeguards in place. According to Commissioner Ribera, this could happen if minority stakes “are used to gain insight information and influence decisions in ways that can harm competition", and if companies “[exchange] sensitive information beyond what [is] needed for a corporate investor to protect a financial investment". While drawing the line is not always straightforward in practice, the EC’s position arguably frustrates many business interests and objectives that investors might have when investing in a competitor.
• Board representation in a competitor, absent a controlling stake, requires strict safeguards to prevent unlawful information flows and careful consideration as to who is appointed to the board, taking into account their potential links to other competitors. The EC decision indicates an increased interest for enforcement in this area.
• No poach agreements are high-risk and likely to attract enforcement scrutiny, even if they are informal or arise in the context of an investment. As demonstrated in the decisions of both the EC and the FCA, industries where talent is scarce and constitutes a key parameter of competition are particularly in the spotlight. Such scrutiny of course also applies to market allocation agreements, as has long been clear from the EC’s decisional practice and case law. 
• M&A transactions between competitors should be conducted within strict “clean team” protocols to avoid pre-closing coordination concerns. This is highlighted in the decision, which notes that the companies did not put in place “appropriate antitrust safeguards” during their negotiations.
• Merger filings can lead to antitrust investigations. Delivery Hero’s July 2022 acquisition of control over Glovo was unconditionally approved by the Spanish competition authority. This brought the infringement to an end (after the acquisition of control the two companies became part of the same group, which removed the antitrust concerns), but also may have triggered the EC’s investigation in the first place. The EC’s first unannounced inspections in this case in June 2022 “follow[ed] a market monitoring exercise […] prompted by information received from a national competition authority and via the anonymous whistleblower tool".

Businesses holding or considering acquiring a minority stake in a competitor, especially with board representation or other close ties (e.g., advisory roles, particular expertise in the sector, etc.), should closely review the structure and governance of their investment, ensure their compliance trainings and protocols are up to date, and have strict safeguards in place governing any exchanges of information between themselves and their various investments.