A New Sense of Unease: The Rise of No-Poach and Wage-Fixing Concerns Under EU Competition Law

 A new hot topic has emerged in antitrust discussions around the world and it is here to stay: Wage-fixing and “no-poach” agreements between employers are perceived as a threat not only for affected employees, but also for innovation in general. Competition authorities worldwide have initiated numerous investigations and are using their investigative measures, including dawn raids, to fight this new threat to competition that in the authors’ view may be more of a non-properly specified “sense of unease” rather than a genuine antitrust issue. The authors shed light on (i) the roots of the discussion, (ii) the ongoing enforcement activities and (iii) the most relevant – largely still open – competition law questions, such as the distinction between “by object” and “by effect” restriction and the ambiguities around the theory of harm of such competition law concerns. They also provide an overview of measures that companies should take to address potential complaints raised by stakeholders or competition authorities.

By Tilman Kuhn, Strati Sakellariou-Witt & Cristina Caroppo^[1]

I. INTRODUCTION

The discussion around wage-fixing and so-called “no-poach” agreements is a new hot topic in (EU) competition law.^[2] Last year, the EU Competition Commissioner Margrethe Vestager put the topic on the EU Commission’s (“EC”) dawn raid agenda. Speaking at the Italian Antitrust Association’s Annual Conference in October 2021, Commissione