Naked no-poach agreements considered prima facie as ‘by object’ restrictions unless specific circumstances present (CD Tondela and others)
Competition analysis: In his Opinion in the Tondela Case delivered on 15 May 2025, Advocate General (‘AG’) Emiliou at the Court of Justice of the EU argues that no-poach agreements entered into between competitors have all the characteristics to be considered prima facie restrictive of competition ‘by object’, unless the content, the legal and economic context and the objectives of the specific agreement at issue cast doubt on the harmful nature of the agreement or if the no-poach agreement is ancillary to a transaction which is itself not anti-competitive. In application of the Meca-Medina case law, AG Emiliou argues that the objective of the no-poach agreement in question (ensuring a fair and orderly end of the 2019/2020 football season during coronavirus (COVID-19) pandemic) was worthy of protection under EU law and absent any equally effective and less restrictive measures necessary and proportionate to that objective. Written by Peter Giese, Kirsten Baubkus-Gérard, Elisa Götz, lawyers at CMS.