To quote this paper: E. CAMOIN, “The French Competition Authority qualifies, for the first time, as anti-competitive, a standalone non-poaching agreement”, Competition Forum, 2025, n° 0076 https://competition-forum.com. 

One will find an increasing effort to regulate the domain of job recruitment. Indeed, the first sanctions for non-poaching agreements were taken in the United States in 2010[1]. In a notice from June the 28^th 2024[2], the French Competition Authority (FCA) stated that non-poaching agreements can also constitute prohibited anticompetitive practices. In the case of the FIFA, The Court of Justice of the European Union (CJEU) decided that “such rules, even if they are presented as being intended to prevent player-poaching practices by clubs with greater financial means, can be treated as being equivalent to a general, absolute and permanent ban on the unilateral recruitment of players”, which led to the conclusion that “on that basis, they constitute a manifest restriction of the competition”[3].

On June the 2^nd 2025, the European Commission judged that “the general no-poach and the no-poach clauses […] are restrictions of competition by object. They are a form of sharing of the sources of supply within the meaning of Articles 101(1)(c) of the Treaty and Article 53(1)(c) akin to a buyer cartel”[4]. Exactly nine days later, the FCA published the Decision 25-D-03, in which, it reviews the anti-competitive nature of “non-poaching practices aimed at the prohibition of soliciting and hiring staffs”. It is the first time that the FCA sanctions no-poach agreements as standalone infringements[5].

In this case, the five compagnies involved, were active in the sectors of “engineering, technology consulting and IT services” and on the hiring segment of these industries. Three objections were notified by the investigation service.

The first one involved the company Randstad (formerly Ausy) and Alten, which would have concluded and carried out, a so called “gentlemen’s agreement” of non-aggression and non-poaching, aimed at suppressing the competition on the employment of their respective commercial and managerial staffs.  

The second one involved the company Bertrandt and Expleo (formerly Assystem), which formed and upheld a non-poaching gentlemen’s agreement, concerning all their respective staffs, and non-solicitation clauses in several contracts like consortium or subcontracting agreements between the parties.

The third one involved the company Randstad and Atos, which created and maintained a non-aggression pact, applicable to the staff working on projects for Airbus and CNES, and non-solicitation clauses in several subcontracting agreements.

The investigation service considered that each agreement notified in the statements of objections, had for object and for effect to share the downstream markets and to share the sources of supply on the upstream market of the human resources, which are prohibited by the article 101 of the Treaty on the Functioning of the European Union and the article L.420-1 of the French Commercial code.

A gentlemen’s agreement is a “general agreement, often informal and open-ended in duration and with a very large scope”[6]. In this case, they aimed at the prohibition of direct solicitation from the competitor and spontaneous application from the employe. The non-solicitation clauses can be described as “specific and formal clauses in broader agreements”[7], which, forbid only the direct solicitation from the competitor.

The analysis laid out by the FCA has to been seen through the lens of the prominence of the human resources in the studied sectors. Indeed, one of their main characteristics is “the strategic importance of human resources”[8] that constitute a central “competition parameter”[9].

Looking at these practices as a whole, it is clear they share many common features, leading us to believe the FCA would have viewed them similarly. Nevertheless, the two gentlemen’s agreements were considered as constitutive of a competitive restriction by object. However, concerning the non-solicitation clauses it is not established that they present an anti-competitive nature due to their object or their effect.

Therefore, the third objection along with the section of the second one, related to the non-solicitation clauses, were not constituted. As a result, the Authority sanctioned Ausy, Bertrandt, Expleo and Randstad, for which the fine was lowered to zero, thanks to the full immunity granted by the leniency program.

Hence, it will be necessary to examine the Decision 25-D-03 to understand the distinction made by the FCA between them to justify such opposite qualification. Indeed, on one side the Authority prohibit the general gentlemen’s agreements (I), and on the other side, it absolves the non-solicitations clauses (II).

I. The prohibition of the general “gentlemen’s agreements”

The gentlemen’s agreements were qualified as a restriction by object because they were indefinite and had an unlimited personal field of application (A). This qualification has vast consequences because it limits the analysis of the economic and legal context for the competition authority and restrains the available means of defense for the companies (B).

A. The reasons of the restriction by object’s qualification

First of all, the prohibition of this gentlemen’s agreement is justified by the structure of the studied sectors.

Indeed, the human resources are qualified as “one of the most strategic parameters” of the competition between the litigants[10]. Additionally, the importance of the business managers is central, since they are qualified as “indispensable to the proper functioning”[11] of the defending companies. As a result, a non-poaching agreement concerning this category of employee is considered particularly strategic and affects a competitive parameter between the companies.

Therefore, in an industry where human resources are less central, such agreement might not be considered as a restriction by object and the parties’ defenses against this qualification, which will be examined below, could have been successful.

Another factor that contributed to such qualification is the general nature of the gentlemen’s agreements, which is mainly caused by the fact that they were made outside any contract, unlike the non-solicitation clauses. In fact, they have an unlimited or too large personal field of application and an unlimited duration. A parallel, can be drawn, with the FIFA case of the CJEU, which sanctioned a “general, absolute and permanent ban on the unilateral recruitment of players”[12].

Concerning the personal field of application the gentlemen’s agreement between Randstad and Alten “apply to all business managers, regardless of the mission they are assigned to and the client for which they intervene”[13].

For Expleo and Bertrandt, the agreement concerns all their staff. In this case, the general nature was caused by the fact that it was made to remedy the absence of a non-solicitation clause between the parties during the period preceding the conclusion of a specific contract. Therefore, the companies couldn’t limit the agreement to the employees assigned to the future operation and limit it to the duration of the contract that was not yet concluded.

Nonetheless, we can picture a parallel universe where the gentlemen’s agreements were admissible because they were restricted to a hypothetic negotiation duration and to certain category of staff. Nevertheless, the agreement between Randstad and Alten was limited to the business managers and is still considered as a restriction by object. Thus, to be admissible the agreement must be limited to a certain type of staff, like business managers, but furthermore, it must be limited to certain subcategories, like the ones assigned to a specific contract, which was the case for the non-solicitations.

Of course, it seems a challenging task to design an agreement large enough to protect the parties but not too general to avoid any sanction. Furthermore, it is complex to predict how a competition authority will perceive the anti-competitive nature of an agreement, which depend of the sector concerned. To assess the admissibility of such non-poaching agreement, the companies will have to self-reflect on their organization and the structure of the market where they operate, to identify the importance of the human resources and if they constitute a competitive parameter. The obvious solution is to link the agreement with an existing contract, which will logically limit its duration and personal field of application, and support the objective justification of its existence.

Based on all the aspects exposed above, the FCA concludes that these agreements are a restriction of competition by object aimed at sharing the sources of supply, and according to the case law of the CJEU, it “constitute a particularly serious breaches of the competition rules”[14].

B. The consequences of the restriction by object’s qualification

In the decision Toshiba, the CJEU states that in the case of such restriction “the analysis of the economic and legal context […] may thus be limited to what is strictly necessary in order to establish the existence of a restriction of competition by object”[15]. It illustrates that in the case of such restriction; the competition authority review process is facilitated[16].

In addition, the notion of restriction by object strongly limits the possibilities for the companies to defend themselves. For instance, the companies responded that the practices were not harmful because they affected a minimal part of the company’s workforce. Based on the precedents laid out by the CJEU[17], the study of the infringement’s implementation, the usefulness of the practice or the weight of the operators are part of the effect analysis, which are not reviewed to qualify the object[18].

The parties invoked, as a defense, their negligible and small position, the actual carrying out of the violation or the demonstration that it has been proved unnecessary. These arguments were very swiftly rejected, considering that they fall under the examination of practice’s effects and are not relevant in the case of a restriction by object[19].

Additionally, a further line of defense stemmed from the assertion that these agreements were created with the purpose of preventing “acts of unfair competition” from occurring among the parties. The Budapest Bank decision, established that “the fact that a measure is regarded as pursuing a legitimate objective does not preclude that measure from being regarded — in the light of the existence of another objective […] — as having an object restrictive of competition”[20].

Furthermore, the parties could protect themselves against the poaching of their staff by securing their team, with human resources policies aimed at retaining employees, non-competition clauses, non-solicitations clauses or legal actions in acts of unfair competition.

Therefore, what is implied by the Authority is that, such general gentlemen’s agreement should be the last resort of the companies when every other option is exhausted. The position of the FCA is questionable on the subject of the actions in acts of unfair competition, because they are long, uncertain and costly, which is in opposition with the firms that need fast and certain remedies. Despite these contradictions, this decision transforms these actions into an imposed solution. In addition, it is quite arduous to imagine a situation where such actions will be impossible, allowing the companies to conclude an agreement. Indeed, they are demanding and not optimal in the business world, but they are generally legally possible.

The parties also put forward as a defense the lack of precedents and experience of such agreement. Based on the CJEU and the French court of appeal[21], the FCA answered that even if it never qualified an agreement similar to the one in dispute as a restriction by object, it doesn’t to prevent it from being retained.

To conclude on that matter, it is easily understandable that once the agreement is qualified as a restriction by object, the firms’ range of defense is strongly limited and it is probably almost impossible to prove that the practice was legitimate.

II. Clearance of the limited non-solicitation clauses

The solicitations clauses were accepted by the Authority, which said that they neither had an anti-competitive object or effect (B). This conclusion is due to the discrepancy between the two practices investigated (A).

A. The distinction between the gentlemen’s agreement and the non-solicitation clauses

First of all, before any analysis, the FCA has to determine if the gentlemen’s agreements and the clauses are two different practices.

Contrary to the gentlemen’s agreements, the non-solicitation clauses are inserted in a contract which limits them to the staff that are affected by it and restricts them to its duration and one or two years following its termination.

To give a concrete example, in the case of Expleo and Bertrandt, the solicitation clauses were inserted in a sub-contracting contract specific to a certain operation, while the gentlemen’s agreement was made to cover the void period before the contract.

A more complex situation emerges in the case between Randstad and Atos. The investigation service alleged the existence of a non-aggression pact and several non-solicitations clauses. The FCA stated: “it is not established that the parties concluded a non-aggression pact that is separate or go beyond the scope of the non-solicitation clauses”[22]. Actually, they both cover the staff assigned to the operations with two specific clients, for which partnerships, with non-solicitation clauses, were concluded. Thus, “it is not excluded that what is described as a non-aggression pact is, in reality, the systematic inclusion of non-solicitation clauses in contracts”[23].

Since “the two practices are not related to the same factual elements” they must be addressed separately, which has huge consequences on the appreciation of their non-competitive nature.

B. The distinction leading to a highly distinguishing qualification

These non-solicitation clauses aim to prohibit the recruitment of the respective staff of each party; some apply in every scenario and others allow the hiring if the initial solicitation is made by the employee. Nevertheless, in any case they are deemed to not be a restriction by object for several reasons.

First of all, there personal scope is restricted to the staff who participated to the project designated by the contract and the ones who participated in the performance of the services covered by it. In addition, most of the clauses are restrained to the relationship with only one client.

Secondly, there duration is limited to the length of the contract and one or two years after its termination, which “seems reasonable to ensure the stability of the teams assigned to carrying out a project”[24] and to guaranty the post-contractual support.

Thirdly, each clauses included a compensation in the event of violation, which can be a clue to the restriction of competition. In this case, it is not because it is deemed to not have a dissuasive nature due either to the amount of the sanction that compensates only partially the harm suffered by the poaching or it has never been applied despite the observed shortcomings. This last justification seems odd, because as noted earlier, the fact that the agreement was not carried out doesn’t serve as a valid excuse against the qualification of restriction by object, but it falls under the analysis of the effect. Nevertheless, here the fact that the compensation was never used is a clue to the refusal of the qualification of restriction by object, which sounds contradictory.

As a final point, the FCA states that the legal and economic context corroborate the lack of anticompetitive object. Indeed, the French Court of Cassation judged that non-solicitations clauses are not prohibited per se but “they must be assessed strictly on their proportionality in the light of the legitimate objectives they seek to protect”[25].

The sectors in question are characterized by a high turnover rate which has significant repercussions on the execution of contracts and, ultimately, on the quality of the projects. Moreover, these clauses “tend to guarantee the stability of a limited number of collaborators assigned to carry out a specific project”[26]. It seems odd because the FCA uses the exact same justification, used by the companies as a defense about the gentlemen’s agreement, which was rejected. The subtlety here is the “assigned to carry out a specific project”. The objectives are the same, the economic and legal context are the same, but the frame of the agreement is different. The gentlemen’s agreement was general and unlimited. Here, the clauses are constrained and limited. These limitations give more leeway to justify the clauses. Indeed, “the more limited they are, the less likely they will be susceptible to sanction.”[27].

The FCA concludes that it is not established that the clauses in question are anti-competitive because of their object.

This solution is explained by the fact that the clauses “merely establish an undertaking not to recruit a particular category of staff, within the framework of the performance of a specific contract, with a single client of the company and for a limited duration to the execution of this contract with the objective of ensuring the proper completion of this project”[28].

Thereafter, a very brief effects’ analysis of the clauses is realized. The Authority states that the elements in the file do not make it possible to determine the impact of the clauses in question or if they have led to anticompetitive effects. It observes that the clauses involve a limited part of the identified market constituting in a small proportion of the staffs and have also been implemented for limited and reasonable durations.

Before closing the curtains on this article, it is important to note three last points.

First of all, the solution exposed previously is only applicable to this specific individual case. In light of the same clauses, the Authority could decide otherwise because the sectors, the objectives, the justification, the duration or the characteristics of the clauses, are distinct.

Moreover, the procedure was disjuncted between the partnership’s contracts and the non-solicitation clauses, which as the consequence of not allowing for an analysis of these clauses as ancillary restraints. So, in another case, where the main contracts and the non-solicitation clauses are analyzed in conjunction, the clauses can be also admissible considering their ancillary nature.

To put a final point to this analysis, it is important to mention that this decision is the subject of an appeal before the Court of Appeal of Paris, which could invalidate what the FCA decided.

Emmanuel CAMOIN

[1] G. de Galzain and A. Glatz, ”Clauses et accords de non-débauchage : panorama d’une actualité importante en droit de la concurrence”, La Semaine Juridique Entreprise et Affaires n° 41, October 9^th 2025, 1271,

[2] Opinion 24-A-05, of June 28^th 2024 on the competitive functioning of the generative artificial intelligence sector, § 268

[3] CJEU, Octobre 4^th 2024, Fifa, C‑650/22 §146

[4] Decision of the European Commission, of June 2^nd 2025, Case AT.40795, Food Delivery Services, §71

[5] E. Mandel Benichou, T. Oster, “The French Competition Authority for the first time fines 3 companies for anticompetitive no-poach agreements as stand-alone infringements”, June 11^th 2025, e-Competitions, Art. N° 127445

[6] M. Lepinoy, N. Crawford, “No-poach practices: the Autorité de la concurrence fines four companies in the engineering, technology consulting and IT services sectors”, June 11^th 2025

[7] M. Lepinoy, N. Crawford, “No-poach practices: the Autorité de la concurrence fines four companies in the engineering, technology consulting and IT services sectors”, June 11^th 2025

[8] Decision 25-D-03, §41

[9] Decision 25-D-03, §388

[10] Decision 25-D-03, §506

[11] Decision 25-D-03, §508

[12] CJEU, October 4^th 2024, Fifa, C‑650/22 §146

[13] Decision 25-D-03, §510

[14] CJEU, January 20^th 2016, Toshiba, C-373/14 P §28 and CJEU, October 4^th 2024, FIFA, C-650/22 §129

[15] CJEU, January 20^th 2016, Toshiba, C-373/14 P §29

[16] E. Jégou, “Anticompetitive object and effect: Does the recent EU case law bring clarity or fresh doubts?”, Concurrences Webinar, November 20^th 2020

[17]CJEU, January 20^th 2016, Toshiba, C-373/14 P, and CJEU, January 25^th 2007, Sumitomo Metal Industries, C-403/04 P

[18] Decision 25-D-03, §525 and §632.

[19] This solution is based on CJEU, January 20^th 2016, Toshiba, C-373/14 P

[20] CJEU, April 2^nd 2020, Budapest Bank e.a., C-228/18, §52

[21] CJEU, March 25^th 2021, Lundbeck, C-591/16 P, and The Paris’ Court of Appeal, December 12^th 2024, RG n° 21/16134

[22] Decision 25-D-03, §652

[23] Decision 25-D-03, §650

[24] Decision 25-D-03, §572 and §675

[25] Court of cassation, May 27^th 2021, n° 18-23.261, §10

[26] Decision 25-D-03, §581 and §670

[27] G. de Galzain and A. Glatz, ”Clauses et accords de non-débauchage : panorama d’une actualité importante en droit de la concurrence”, La Semaine Juridique Entreprise et Affaires n° 41, October 9^th 2025, 1271

[28] Decision 25-D-03, §678 and §690