Decision of the European Commission on Delivery Hero and Glovo
With its decision of 2 June 2025, the European Commission found an antitrust infringement by Delivery Hero and Glovo in the area of online food delivery throughout the European Economic Area and imposed fines totaling EUR 329 million.
This demonstrates the willingness of the new Competition Commissioner Teresa Ribera to prosecute antitrust infringements. Clearly, she intends to continue the policy of her predecessors in office and is prepared to impose high fines even for new types of infringements. The decision marks important new developments for the antitrust compliance of companies in two respects:
Non-solicitation clause (‘No Poach’)
In recent years, collusive behaviour in the labour market has been pursued by competition authorities worldwide - particularly in the USA1, where the DOJ has already issued a number of decisions on this topic2, but also in Brazil3and Switzerland4, for example. There, the focus not only lies on non-solicitation, but also on agreements on salaries and the exchange of information on salary-related components. At EU Member State level, some antitrust authorities have published guidelines (such as the Portuguese authority's best practice guide5and the Dutch authority's guidelines on cooperation between competitors6) and initiated numerous investigations (for example into non-solicitation agreements in professional football in Portugal7, in the transport sector in Belgium8and in the floor manufacturing sector in France9). The European Commission has also taken an increasingly tough stance on labour market restrictions in recent years. In May 2024, it published a policy paper on the subject10. According to this, non-solicitation clauses (‘no poach’) should generally be regarded as restrictions of competition by object. As a rule, they should not be considered ancillary restraints or be eligible for exemption under Article 101 (3) TFEU.
The European Commission has now confirmed this assessment and sanctioned the conclusion of non-solicitation agreements for the first time. It categorises a general non-solicitation agreement as a serious infringement and a restriction of competition "by object". This means that such an agreement is automatically unlawful without the need to prove any impact on competition. It is sufficient to establish that the behaviour, taking into account the relevant economic and legal context, is sufficiently detrimental to competition.
In the European Commission's view, agreements between companies not to poach each other's employees constitute a form of buyer cartel under Article 101 (1) (c) TFEU. This assessment is not affected by the fact that the agreement is only a non-solicitation clause and not a hiring ban. Similarly, an impairment of competition can be assumed even if the agreement is only concluded between two companies, i.e. employees still have the opportunity to look for employment opportunities elsewhere on the market.
The European Commission emphasises that non-solicitation clauses generally cause economic damage as they prevent the efficient allocation of productive employees to companies. Employers in competition would thus no longer have to proactively offer higher wages in order to persuade employees to change jobs or make counteroffers with higher wages.
The discussion about the assessment of ‘no poach’ under antitrust law is likely to continue after the decision. In recent preliminary ruling proceedings before the ECJ (Case C 133/24), Advocate General Emiliou also expressed the view that ‘no-poach’ agreements can be considered a restriction of competition by object. However, a detailed analysis of the individual circumstances of the case is required if the anti-competitive nature of the relevant agreement is not clear, as in this case with a poaching agreement in football during the Covid-19 pandemic. It remains to be seen whether the Court will follow this view of the Advocate General. In any case, it is clear that - apart from a few narrow exceptions - a non-solicitation agreement can be challenged under antitrust law. A further intensification of antitrust law enforcement in this area is therefore to be expected.
Anti-competitive utilization of a minority shareholding
The European Commission's decision is also significant for a second reason: for the first time, the European Commission focussed on the use of a minority stake in a competing company for anti-competitive purposes. For a period in which Delivery Hero only held a non-controlling minority stake in Glovo, the European Commission found that the two companies had exchanged information that was problematic under competition law. The European Commission found that the two competitors had exchanged commercially sensitive information (e.g. business strategies, prices, capacity, costs and product features) and that this had enabled them to adapt their market behaviour. Such behaviour was facilitated by Delivery Hero's minority shareholding in Glovo. The European Commission clarified that holding a stake in a competitor is not per se illegal under antitrust law. However, in this specific case, the shareholding had facilitated anti-competitive contacts between the two competing companies on several levels. Delivery Hero was able to influence the decision-making processes at Glovo and ultimately coordinate the business strategies of the two companies. The group privilege under antitrust law did not apply here due to the lack of a controlling interest.
According to the European Commission, the behaviour of the two companies cannot be justified by the fact that Delivery Hero was attempting to protect its shareholding as a minority shareholder. Delivery Hero could have exercised its minority shareholding rights and financial interests through its representatives on Glovo's executive bodies without exchanging information that was sensitive under antitrust law. Appropriate antitrust safeguards should have been put in place for this - i.e. Chinese Walls, NDAs, Clean Team Agreements, etc.
A minority shareholding in a competitor is therefore associated with significant antitrust risks, even if it is not illegal per se. Consequently, particular caution is required. The participation facilitates the exchange of confidential business information, the exertion of influence on decision-making processes and ultimately the harmonisation of the respective business strategies of both companies. Under merger control law, the European Commission has long been discussing the extent to which minority shareholdings can lead to relevant influence. Such a participation is now also being addressed in the context of antitrust proceedings. Companies should therefore pay close attention to the establishment of suitable antitrust safeguards in the case of horizontal interdependencies and, in particular, put a stop to the exchange of information and limit it to what is necessary and permissible.
Outlook for the future
The European Commission's decision of 2 June 2025 shows once again that companies must put antitrust compliance at the top of their agenda. Some observers had expected a certain easing of European antitrust enforcement under the new Competition Commissioner. However, this assessment is likely to have been shattered, at least for the time being.
The fines imposed by the European Commission on Delivery Hero and Glovo also illustrate that the authorities are no longer focussing solely on uncovering traditional price fixing, but are also looking at new, atypical infringements. For example, the competition authorities are increasingly focussing on newer forms of price coordination such as ‘signaling’. In the USA, a further focus of cartel prosecution is on the inadequate coordination via price algorithms (see, for example, Realpage11, Duffy vs. Yardi12, Casino-Hotel13, Mulitplan14). In this respect, the decision is in line with the general trend. This represents a considerable challenge for companies and their external consultants.
[1] “Antitrust Guidelines for Business Activities Affecting Workers”
[2] Press release; Press release
[3] Press release
[5] “Best practices in preventing anticompetitive agreements in labour markets”
[6] “Guidelines on Collaborations between competitors”
[7] Press release
[8] Press release
[9] Press release; decision (in French)
[10] “Competition policy brief: Antitrust in Labour Markets”
Forward
