1. Introduction
The application of competition law to labour markets can no longer be regarded as a peripheral issue. For a long period, competition-law analysis was predominantly built around sales markets, taking as its typical references the fixing of prices charged to consumers, the allocation of customers or territories, bid-rigging in public tenders, restrictions on output, or abuse of dominant position in markets for goods and services.
That orientation, understandable in light of the historical development of competition policy, contributed to an excessively consumer-centred reading of the effects of business conduct.
However, competition between undertakings does not arise only when goods or services are placed on the market. It also arises upstream, in the contest for the resources necessary to carry out economic activity, including capital, technology, information and, decisively, qualified labour.
It is at this point that no-poach agreements acquire particular relevance. Through such agreements, two or more undertakings undertake not to recruit each other’s employees, not to make unsolicited approaches to them, or not to hire them without the prior authorisation of their current employer.
The Portuguese Competition Authority has been treating such agreements as practices capable of restricting competition in the labour market. Since 2021, it has warned that horizontal agreements not to solicit workers and agreements fixing wages may infringe the Portuguese Competition Act and, where applicable, Article 101 of the Treaty on the Functioning of the European Union.
The legal relevance of the subject stems from the fact that no-poach agreements occupy a borderline area between two fields which, although distinct, are deeply complementary in this context: competition law and labour law. From a competition-law perspective, such agreements undermine the independence of undertakings in defining their recruitment, retention and remuneration policies, restricting the rivalry that should exist between employers seeking workers. From a labour-law perspective, the same agreements affect freedom of work, professional mobility and the worker’s ability to enhance the value of his or her skills in an effectively competitive market. The phenomenon should not, therefore, be reduced either to a mere economic infringement or to a simple contractual restriction on labour mobility. It is, rather, a practice whose censure rests on the convergence between the protection of the competitive process and the protection of professional freedom.
2. The labour market as a relevant market for competition-law purposes
The preliminary question is whether the labour market may be brought within the concept of a relevant market for the purposes of applying competition law. The answer must be affirmative, although an important qualification is required: the “labour market” should not be treated as a homogeneous and undifferentiated reality. Rather, there may be relevant markets for the acquisition of labour, delimited according to qualifications, skills, professional experience, geographical location, sector of activity and other conditions affecting substitutability between workers and between employment opportunities.
Competition law does not concern itself only with markets in which undertakings sell goods or provide services. Its logic also extends to upstream markets, in which undertakings compete to obtain the productive factors necessary for the exercise of their activity. Labour is one such factor, particularly where scarce, specialised or economically valuable professional profiles are concerned. In such cases, employers compete not only through base remuneration, but also through bonuses, benefits, career progression, working conditions, work arrangements, training, institutional reputation, quality of projects and prospects for professional development.
The personal, subordinate and socially sensitive nature of the employment relationship does not displace this conclusion. A worker is plainly not a commodity, nor can the employment contract be reduced to a simple economic transaction. However, that specificity does not prevent the provision of labour from being considered, in economic terms, a productive resource whose efficient allocation also depends on the existence of competition between employers. On the contrary, the particular dignity of labour reinforces the need to prevent forms of business coordination which, by artificially limiting professional mobility, affect not only the functioning of the market but also the concrete freedom of the worker to value his or her skills, negotiate remuneration and choose a professional path.
From this perspective, employers act as purchasers of labour. Where undertakings that should compete with one another agree not to compete for certain workers, or not to make employment offers to them, the practice functionally approaches a buyers’ cartel. The restriction does not concern the sale price of a product, but the conditions of acquisition of an essential factor of economic activity. The result is a reduction of competitive pressure in recruitment, with potential wage compression, weakening of workers’ bargaining power, reduced circulation of knowledge and lower efficiency in the allocation of available talent.
For this reason, the analysis of no-poach agreements must start from the premise that competition between employers is a distinct and legally relevant dimension of the competitive process. Labour mobility is not merely an individual prerogative of the worker. It is also a mechanism of market discipline, of revelation of the economic value of skills, and of incentive to innovation and productivity. Where such mobility is restricted by coordination between undertakings, competition law has a basis for intervention, notwithstanding the fact that the matter also projects itself into the labour-law sphere.
This understanding is supported by the recent approach of the European Commission, which has expressly brought labour markets within the scope of EU competition policy. In its Competition Policy Brief on this subject, the Commission distinguishes, in particular, two categories of especially sensitive practices: on the one hand, wage-fixing agreements, whereby employers coordinate remuneration levels, benefits or other economic conditions of the employment relationship; on the other hand, no-poach or non-solicitation agreements, whereby undertakings undertake not to recruit, approach or compete for each other’s workers. The relevance of this distinction lies less in the formal diversity of the practices than in their functional unity: in both cases, employers replace competition in the labour market with restrictive coordination of their conduct. For that reason, the Commission considers that such agreements are, as a rule, capable of constituting restrictions of competition by object for the purposes of Article 101 TFEU, insofar as, by their very nature, they are apt to limit rivalry between undertakings in the acquisition of labour.
3. Nature and effects of no-poach agreements
No-poach agreements may take a wide variety of forms. They may be express or tacit, written or merely oral, bilateral or multilateral, reciprocal or unilateral. They may consist of an absolute prohibition on hiring, an obligation not to actively approach workers, a requirement of prior authorisation before hiring workers from another undertaking, or an indemnity clause intended to deter mobility. They may also appear under apparently benign labels, such as “gentlemen’s agreements”, “non-aggression agreements”, “non-solicitation agreements” or internal rules of association ethics.
Their competitive harm does not depend solely on their form. What matters is their functional content: reducing or eliminating competition between employers for the hiring of workers. Where one undertaking knows that another will not approach its workers, and reciprocally undertakes to act in the same way, both cease to compete for talent under normal market conditions. The absence of such competitive pressure may result in lower wage growth, reduced mobility, less circulation of knowledge and a less efficient allocation of workers to the projects or undertakings where they would be most productive.
The harm may arise even where workers are unaware of the existence of the agreement. Indeed, such agreements are often opaque to those most directly affected by them. A worker may never know that he or she did not receive an offer because a potentially interested undertaking was bound by a non-solicitation understanding. This invisibility aggravates information asymmetry and reduces the possibility of individual reaction.
The AdC identified precisely this risk in its 2021 report and best-practices guide, stating that no-solicitation or no-hire agreements strengthen employers’ bargaining power vis-à-vis workers and are capable of infringing the Competition Act. The Authority further noted that such agreements may generate inefficiencies, limit output, reduce innovation and discourage investment in human capital.
4. Competition-law framework: Article 9 of the Competition Act and Article 101 TFEU
The domestic reference provision is Article 9 of the Competition Act, approved by Law No. 19/2012, whose structure reveals a deliberately broad vocation to protect the competitive process. The prohibition laid down therein is not confined to traditional sales cartels, nor does it depend on the restriction being immediately reflected in the position of the final consumer. Rather, it covers any agreement between undertakings, concerted practice or decision by an association of undertakings which has as its object or effect the appreciable prevention, distortion or restriction of competition in the whole or part of the national market. This formulation is decisive for the analysis of labour markets, as it allows competition-law scrutiny of conduct affecting not only the supply of goods and services, but also the acquisition of productive factors necessary for business activity, including labour.
In this framework, the statutory references to the direct or indirect fixing of purchase or selling prices, the limitation of technical development or investment, and the sharing of markets or sources of supply should not be read in a strictly mercantile or material sense. They should instead be interpreted according to their economic and competitive function: preventing undertakings from replacing rivalry with coordination in the acquisition of the resources they need in order to operate in the market. Thus, coordination between employers concerning wages, benefits or other elements of labour consideration may be analysed as a form of coordination of the conditions for acquiring the labour factor. Similarly, no-poach or non-solicitation agreements functionally approximate a sharing of sources of supply, insofar as they limit, by agreement between undertakings, competitive access to the available supply of professional skills.
This reading does not imply the assimilation of the worker to a commodity, nor the reduction of the employment relationship to a purely economic transaction. It means, rather, recognising that freedom of recruitment, the autonomy of undertakings in defining their hiring policies and the professional mobility of workers are also part of the competitive process. The application of competition law to labour markets is not, therefore, an artificial transposition of categories developed for goods markets into the labour sphere. It corresponds instead to the recognition that the hiring of workers is a relevant dimension of economic activity, in which undertakings must act independently and not in concert.
Where the agreement affects or is capable of affecting trade between Member States, Article 101 TFEU may also be applicable. Portuguese administrative practice has itself been framing restrictive labour-market agreements in this dual national and European dimension whenever the relevant conditions are met. The public file of the Portuguese proceedings concerning no-poach agreements in the technology consulting sector expressly identifies Article 9 of the Competition Act and Article 101 TFEU as applicable provisions.
Classification as a restriction by object is particularly relevant. It means that, having regard to the content of the agreement, its objective purpose and its economic and legal context, the practice is considered sufficiently harmful to competition, without the need to demonstrate exhaustively all of its concrete effects. This does not dispense with proof of the agreement or with analysis of the context. It does, however, prevent structurally harmful practices from being treated as neutral until it is possible to quantify, case by case, the wage loss suffered by each worker or the professional opportunity that did not materialise.
5. The articulation with labour law
The classification of no-poach agreements as competition-law restrictions does not dispense with, but rather requires, their articulation with the fundamental principles and rules of labour law. Such agreements operate in a field where the freedom of economic initiative of undertakings intersects with freedom of work, the professional autonomy of the worker and the protection of his or her mobility in the market. The analysis cannot therefore be limited to verifying the existence of coordination between undertakings. It must also consider how that coordination interferes with the legal position of the worker, in particular with his or her ability to choose an employer, enhance the value of his or her skills and access better professional conditions.
In the Portuguese legal order, the Labour Code reveals an express concern with the protection of freedom of work, especially after termination of the employment contract. Article 136 establishes, as a principle, the nullity of clauses that prejudice the worker’s exercise of professional activity after termination of the employment relationship, admitting only exceptionally the validity of non-compete covenants subject to strict requirements. These requirements include the existence of a written agreement, reference to an activity whose exercise may cause harm to the employer, the payment of compensation to the worker and a time limitation on the restriction which, as a rule, may not exceed two years.
This regime is particularly relevant to the present subject because it shows that labour legislation does not ignore the legitimate interests of the employer, but admits restrictions on professional freedom only under conditions that are delimited, transparent and compensated. Sensitive information, clientele, know-how, investment in training or competitive risk may justify a temporary limitation on the worker’s activity. However, such limitation is exceptional: it must be agreed with the worker, comply with strict statutory requirements, observe time limits and be accompanied by compensation.
Freedom of work therefore remains the principle; restriction is the exception. This logic contrasts sharply with no-poach agreements concluded between employers, in which the worker is, as a rule, external to the restrictive understanding, does not participate in its negotiation, gives no consent and receives no compensation for the indirect limitation of his or her mobility.
Article 137 also permits a retention covenant, subject to similarly delimited terms, allowing the parties to agree that the worker will not terminate the contract for a period not exceeding three years, as compensation for significant expenses incurred by the employer in the worker’s professional training. Here too, the worker is a party to the agreement, knows the obligation assumed and has a mechanism for release through payment of the corresponding expenses.
Quite different is an agreement concluded between employers. Article 138 of the Labour Code is explicit in declaring null and void any agreement between employers that prohibits the hiring of a worker who works or has worked for them, as well as any agreement which, in the event of such hiring, requires payment of compensation.
This provision is essential to the discussion. A labour-law non-compete covenant is an agreement between employer and worker, subject to validity requirements. A no-poach agreement is an agreement between employers, concluded without the participation of the worker, without compensation, often without transparency and with a direct impact on mobility. Accordingly, although both mechanisms may limit professional circulation, they are legally distinct. The former is admitted in exceptional and controlled terms; the latter is, as a rule, incompatible with freedom of work and, cumulatively, capable of constituting an infringement of competition law.
6. The worker as a direct beneficiary of competition between employers
The theoretical relevance of no-poach agreements lies in demonstrating that competition-law protection is not exhausted by the protection of consumers as final recipients of goods and services. Competition policy should be understood as an instrument for preserving the competitive process in all markets in which undertakings operate, including those in which they act as purchasers of productive factors. In this sense, competition does not merely perform a price-containment function in consumer markets. It also performs a function of limiting and dispersing economic power. Where there is effective rivalry between employers, the worker benefits from a more open bargaining environment, in which he or she may value his or her skills, compare alternative offers and negotiate, on better terms, remuneration, career progression, training, work arrangements and other employment conditions.
Conversely, where employers coordinate recruitment or non-solicitation policies among themselves, the structural inequality that characterises the employment relationship tends to be aggravated by an additional concentration of power on the demand side of labour. The worker remains, formally, free to seek new employment. However, that freedom loses substance where potential employers, who should be competing for his or her hiring, agree not to approach, recruit or allow mobility except through prior understandings between undertakings. The restriction is therefore particularly serious: it does not expressly eliminate the worker’s legal freedom, but reduces the market conditions that make that freedom effectively exercisable.
It is at this point that the complementarity between competition law and labour law becomes apparent. Labour law intervenes primarily within the context of the contractual relationship, seeking to correct the asymmetry between employer and worker and to protect professional freedom, remuneration and working conditions.
Competition law operates on a distinct but functionally connected plane: it preserves rivalry between employers and prevents them from neutralising, through horizontal coordination, the competitive pressure that could benefit workers.
The protection of professional mobility thus results from the convergence between the protection of individual freedom of work, the defence of the competitive autonomy of undertakings and the repression of forms of coordination that distort the functioning of the labour market.
7. The possible justification of ancillary restraints
The classification of no-poach agreements as practices involving a high competition-law risk should not, however, lead to an undifferentiated conclusion that every non-solicitation clause concerning workers is unlawful in every context. Competition-law censure is primarily directed at autonomous agreements between undertakings whose object is to limit competition in recruitment. The assessment may be different where restrictions arise as ancillary to a legitimate economic transaction and prove instrumentally necessary for its implementation. The central issue is therefore not the contractual label given to the clause, but its economic function, objective necessity and proportionality.
The doctrine of ancillary restraints permits, in exceptional terms, certain limitations where they are directly related to a lawful principal transaction, indispensable to its implementation and proportionate as regards their material, personal, temporal and territorial scope. This may occur, in abstract terms, in acquisitions of undertakings, the creation of joint ventures, research and development projects, particularly sensitive subcontracting relationships, or commercial contracts involving the transfer of confidential information, specific investment or operational dependence between the parties. Even in such contexts, the validity of the restriction does not automatically follow from the mere inclusion of the clause in a broader contract. A generic, long-lasting and broadly framed no-hire clause will hardly be regarded as ancillary merely because it accompanies a legitimate commercial relationship.
This distinction is especially relevant in labour markets. A limited restriction intended to protect a specific transaction is not to be confused with an autonomous horizontal agreement whereby employers undertake not to compete for workers. In the former case, the limitation may present itself as instrumental to a principal transaction; in the latter, the restriction of labour mobility itself constitutes the economic object of the understanding. It is this latter situation that comes closest to the typical core of no-poach agreements prohibited by competition law.
Article 10 of the Competition Act provides for the possibility of justifying certain restrictive agreements, provided that they contribute to improving the production or distribution of goods or services, or to promoting technical or economic development, reserve to users a fair share of the resulting benefits, do not impose restrictions that are not indispensable and do not eliminate competition in a substantial part of the market. The burden of proving that these requirements are met lies with the undertakings or associations of undertakings invoking the justification.
However, in the field of wage-fixing and no-poach agreements, such a justificatory assessment must be carried out with particular rigour. The European Commission has underlined that such agreements are, as a rule, capable of constituting restrictions of competition by object under Article 101 TFEU, and are also unlikely to meet the requirements for treatment as ancillary restraints or for exemption under Article 101(3) TFEU. The same guidance indicates that legitimate objectives — such as the protection of investment in training, confidential information or operational stability — may normally be pursued through less restrictive means, such as confidentiality agreements, intellectual-property protection clauses, proportionate obligations to reimburse training costs, admissible retention periods or non-compete covenants compatible with national labour law.
It is against this background that the recent case-law of the Court of Justice should be read, in particular the Judgment of the Court of Justice of 30 April 2026 in Case C‑133/24, CD Tondela – Futebol, SAD v Autoridade da Concorrência, ECLI:EU:C:2026:361. The dispute concerned an agreement concluded during the COVID‑19 pandemic, in the context of Portuguese professional football, under which clubs participating in national competitions undertook not to hire players who had unilaterally terminated their contracts for reasons connected with the pandemic.
The interest of the judgment does not lie in creating a general authorisation for no-poach agreements, but in clarifying the way in which context may be legally relevant. The Court of Justice stated that it is for the national court to determine whether the agreement displays a sufficient degree of harm to be classified as a restriction by object, and that such assessment must take into account the content of the agreement, the economic and legal context in which it operates and the objectives it pursues. At the same time, the Court recognised that the agreement at issue coordinated the conduct of clubs in the market for the recruitment of players and that a no-poach clause constitutes a manifest restriction of an essential parameter of competition in professional sport.
The particularity of the case lay in the exceptional context of the pandemic, the suspension of competitions and the invocation of objectives connected with squad stability and the integrity of sporting competitions. The Court of Justice accepted that those elements could be taken into account by the national court, but rejected any notion that the pandemic, in itself, justified a derogation from the prohibition of anticompetitive conduct. The possible compatibility of the agreement would therefore depend on a rigorous analysis of its suitability, necessity and proportionality in the strict sense.
The judgment thus confirms the need for a contextual reading, but it does not weaken the rule of caution applicable to no-poach agreements. On the contrary, it reinforces the idea that such agreements concern a sensitive competitive parameter — competition for workers or professionals — and may escape competition-law censure only in exceptional circumstances, objectively demonstrated and strictly delimited. Outside legitimate transactions to which the restriction is genuinely ancillary, or specific contexts in which a legitimate objective, the indispensability of the means used and the proportionality of the limitation are established, no-poach agreements between undertakings continue to represent a particularly high competition-law risk.
8. The sanctioning and evidentiary dimension
In the field of public enforcement of competition law, no-poach agreements, where they meet the conditions of Article 9 of the Competition Act or Article 101 TFEU, fall within the sphere of administrative offences under competition law. The sanctioning intervention of the AdC is not limited, in this context, to punishing a contractual irregularity or an isolated business practice. It seeks instead to preserve the integrity of the competitive process and to ensure a deterrent effect in relation to forms of horizontal coordination that eliminate the decision-making autonomy of undertakings in the recruitment market.
The specific determination of the fine is subject to a case-by-case assessment under Article 69 of the Competition Act, taking into account, in particular, the seriousness of the infringement for the impairment of effective competition, the nature and size of the affected market, the duration of the conduct, the degree of participation of the party concerned, any advantages obtained, the conduct adopted in bringing the practice to an end and repairing the harm caused, the economic situation of the infringer, its competition-law record and the cooperation provided to the AdC during the proceedings. These criteria show that the fine is not the product of a merely arithmetic exercise. Rather, it constitutes an economic and legal judgment of censure, guided simultaneously by proportionality, the seriousness of the competitive harm and the need for prevention.
It is also important to identify the applicable maximum limit. In administrative offences relating to restrictive practices, the amount of the fine may not exceed 10% of the total worldwide turnover achieved in the financial year immediately preceding the final decision of the AdC, by all entities forming part of each infringing undertaking, in accordance with the competition-law concept of undertaking. This reference to global turnover emphasises the economic and deterrent nature of the sanction, which is especially relevant in practices that, such as no-poach agreements, may affect labour markets without necessarily being reflected in direct turnover in the affected market.
The proof of no-poach agreements raises issues characteristic of the repression of concerted practices. Since these understandings, by their nature, tend to develop outside formal contractual instruments, proof of the infringement may result from the combination of sufficiently serious, precise and consistent indicia. Communications between undertakings, informal messages, internal instructions, contractual drafts, association rules, contacts between human-resources managers or repeated patterns of conduct may acquire evidentiary relevance where they allow the inference of coordination intended to restrict competition in recruitment. The object of proof is not necessarily a written no-poach contract, but the existence of a concurrence of wills or a concerted practice replacing the autonomous conduct of undertakings with a common discipline in the labour market.
This perspective also shifts the centre of gravity of corporate prevention. Competition policy no longer concerns only the areas traditionally exposed to cartelisation risks — prices, sales, tenders, distribution or customer relations — but also decisions relating to the hiring, retention and mobility of workers. It follows that internal mechanisms for training, control and approval of business practices must cover human-resources departments, recruitment teams, project managers, external hiring functions and company representatives in sectoral associations. Only in this way can practices internally perceived as mere rules of business courtesy, operational stability or team protection be prevented from amounting, in substance, to prohibited mechanisms of horizontal coordination under competition law.
9. Private consequences: damages and protection of injured parties
The sanctioning intervention of the public authority does not exhaust the legal regime applicable to infringements of competition law. Beyond the repressive and deterrent dimension ensured by public enforcement of competition law, the question also arises of compensation for the damage suffered by persons affected by the restrictive practice.
Under Article 7 of Law No. 23/2018, a declaration by the AdC, by definitive decision, or by an appeal court, by final judgment, that an infringement of competition law has occurred constitutes an irrebuttable presumption of the existence, nature and material, personal, temporal and territorial scope of that infringement, for the purposes of an action for damages arising from it.
More broadly, that statute establishes the Portuguese regime for actions for damages for infringements of competition law and applies regardless of whether the infringement has already been declared by a competition authority or by a court.
In no-poach agreements, this compensatory dimension is particularly complex. The damage suffered by the worker does not, as a rule, take the simple form of an overcharge paid or an immediately documentable patrimonial loss. It may instead consist of lost professional opportunities, compression of remuneration progression, delayed career development, reduced probability of changing employer, or inability to benefit from offers that would have arisen in a labour market not artificially constrained. The damage is therefore frequently mediated by counterfactual assumptions: it is necessary to reconstruct, on the basis of available economic and evidentiary elements, what the conditions of mobility, remuneration and professional progression would have been in a market where employers acted autonomously and competitively.
The difficulty of quantification should not, however, be confused with the absence of legally relevant damage. The Portuguese regime for private enforcement provides mechanisms designed to prevent information asymmetry and economic complexity from frustrating the protection of injured parties. The court may order, in proportionate and delimited terms, the disclosure of evidence held by the opposing party, third parties or public entities, provided that the request is reasoned and does not amount to an indiscriminate search for information. Moreover, where it is practically impossible or excessively difficult to calculate precisely the damage suffered, the court may determine it by means of an approximate estimate.
This possibility is particularly important in labour markets. Proof of damage caused by a no-poach agreement can hardly rest solely on an arithmetic comparison between an offer received and an offer lost, since the restrictive effect may consist precisely in the absence of any offer, in the reduction of bargaining pressure or in the suppression of professional alternatives. Civil compensation for such damage therefore requires an evidentiary and economic approach compatible with the diffuse, probabilistic and counterfactual nature of the harm, without abandoning the requirement to demonstrate a causal link between the infringement and the damage alleged.
10. The administrative and judicial consolidation of competition-law protection of labour markets
Recent developments in national decisional practice make it possible to observe the movement of no-poach agreements from the sphere of regulatory warning to the domain of effective sanctioning enforcement and, more recently, judicial confirmation. The relevance of this development lies not only in the abstract affirmation that labour markets may fall within the scope of competition law, but in the demonstration that this premise has concrete procedural, sanctioning and evidentiary consequences. The intervention of the AdC has thus ceased to be limited to the issuance of preventive guidance and has begun to translate into infringement decisions concerning practices that restrict professional mobility and condition competition between employers.
Proceedings PRC/2022/3 constitute, in this context, a central reference. According to the public file of the AdC, the proceedings originated in complaints submitted in 2021 concerning horizontal practices in the labour market, with the investigation being opened on 22 March 2022. Search, examination, collection and seizure measures were carried out between 30 March and 20 April 2022, and settlement decisions were subsequently adopted in relation to some of the undertakings concerned, namely SAP Portugal, Accenture Consultores de Gestão and Deloitte Central Services. The public file also identifies the application of Article 9 of the Competition Act and Article 101 TFEU, as well as fines of €1,323,000, €2,481,000 and €278,000, respectively, in the context of those settlement decisions.
The subsequent phase of the same proceedings culminated in the AdC’s decision of February 2025, by which three companies belonging to a multinational technology consulting group were sanctioned for participation in a no-poach agreement. According to the public information made available by the Authority, the practice consisted of reciprocal commitments not to recruit or make unsolicited approaches to workers, and the participation of the group concerned occurred at least between March 2014 and August 2021. The AdC classified the conduct as restrictive of competition in the labour market, on the grounds that it limited the mobility of professionals and allocated between employers access to the supply of qualified labour.
The doctrinal importance of the case is reinforced by the delimitation of the affected market. In its final decision, the AdC identified the directly affected market as the market for the hiring of SAP software specialists in Portugal, characterising supply as being composed of professionals with knowledge of or training in that software and demand as being constituted by undertakings providing SAP software technology consulting services. The Authority also identified a downstream market corresponding to the provision of IT services in SAP consulting, in which those specialists constitute an essential productive factor. This construction shows that the labour market is not treated as an undifferentiated abstraction, but as a market for the acquisition of professional skills capable of being delimited by reference to technical specialisation, business demand and the economic function performed by qualified labour.
The judicial confirmation of the sanctioning decision is the truly distinctive element of this development. In a communication of 30 March 2026, the AdC announced that the Competition, Regulation and Supervision Court had fully upheld the infringement decision imposing a fine of €3,092,000, noting that this was the first judicial confirmation in Portugal of a fine imposed for restrictive competition practices in labour markets. The public file identifies the judicial phase as IDF/2025/2, case No. 192/25.6YUSTR, with the intervention of the Competition, Regulation and Supervision Court on 27 March 2026.
The scope of the judgment must be understood beyond the specific undertaking concerned. Its significance lies in the judicial validation of a principle: competition in recruitment constitutes a legally relevant dimension of the competitive process. According to the AdC’s communication, the Court classified the administrative offence as “very serious”, emphasising that the case concerned a market for highly qualified human capital, characterised by a non-abundant supply of specialised technicians and intensive demand. The judgment also valued labour mobility as a condition of efficiency and innovation, considering that the blocking of such mobility immobilised a critical asset in a high value-added sector.
This formulation is particularly relevant for two reasons. First, it rejects the idea that the restriction of professional mobility is merely an individual harm suffered by the worker or a matter to be resolved exclusively within the framework of labour law. Secondly, it affirms that the circulation of specialised skills performs a specific competitive function, insofar as it enables talent to be allocated to the projects in which it can generate greater economic value. For that reason, concerted restriction of mobility does not affect only the workers directly covered; it also projects itself onto the efficiency of undertakings, the quality of services provided and the competitive structure of downstream markets.
The proceedings also confirm the relevance of classifying no-poach agreements as forms of sharing of sources of supply. The source of supply, in this context, is not a raw material in a physical sense, but the availability of qualified professionals whom undertakings seek to hire in order to carry out their activity. By agreeing not to approach or hire workers, employers artificially reduce rivalry in access to that resource, replacing autonomous recruitment decisions with a concerted discipline. It is precisely that substitution of competition by coordination that justifies the intervention of competition law.
The decision concerning the technology consulting sector did not, however, arise in isolation. In March 2026, the AdC also sanctioned the Portuguese Association of Private Employment and Human Resources Companies, in proceedings PRC/2025/2, for a decision by an association of undertakings consisting of a non-solicitation clause included in its Code of Ethics. According to the AdC, that clause was maintained between December 1987 and March 2025 and bound member temporary-work undertakings not to entice temporary workers to change employer. The fine imposed was €4,519,000.
The combination of these proceedings reveals a consistent orientation by the national authority: no-poach agreements may take the form of bilateral agreements between undertakings, but also of decisions by associations of undertakings or clauses incorporated into sectoral codes of conduct. The legal form is secondary in comparison with the economic function of the practice. What matters is whether the rule or understanding at issue limits the autonomy of employers in defining their recruitment policies and restricts worker mobility, thereby reducing their bargaining power and their capacity for professional progression.
In this sense, the doctrinal value of the Portuguese judicial confirmation may be summarised on three levels. At the level of legal classification, it consolidates the idea that labour markets are relevant markets for the purposes of applying Article 9 of the Competition Act and, where the relevant conditions are met, Article 101 TFEU. At the economic level, it recognises labour mobility as a mechanism of efficiency, innovation and proper allocation of resources. At the labour-law level, it shows that freedom of work is protected not only against contractual restrictions imposed directly on the worker, but also against forms of business coordination that indirectly reduce the opportunities available in the market.
Accordingly, the movement from theory to concrete case-law should not be read as a mere reference to a sanctioned undertaking, but as a sign of maturation of the Portuguese system of competition enforcement. The protection of labour markets has entered the field of effective public application of the Competition Act and has been validated by the specialised judiciary. The consequence is clear: no-poach agreements, non-solicitation clauses and association practices that condition professional mobility must be assessed as potential serious competition-law restrictions, even where they appear under the guise of rules of business courtesy, operational stability or protection of commercial relationships.
11. Conclusion
The principal theoretical consequence of these developments is the relocation of the worker to the centre of competition-law analysis. Competition law does not protect only consumers against artificially high prices; it also protects workers against the artificial suppression of competition between employers. Labour mobility is, simultaneously, an expression of individual freedom, a mechanism for professional valorisation and a factor of economic efficiency.
No-poach agreements must therefore be analysed with particular severity. Their appearance may be discreet, especially where they take the form of informal understandings or apparently secondary commercial clauses. Their effect, however, is structural: they reduce rivalry for talent, weaken the bargaining position of workers and hinder the efficient allocation of skills.
The relevant boundary is not between competition law and labour law, as if they were watertight fields. It is between legitimate, proportionate and transparent restrictions, on the one hand, and horizontal coordination between employers designed to limit labour mobility, on the other. The former may find acceptance in the Labour Code and, in specific cases, in the doctrine of ancillary restraints. The latter lies at the core of the practices that competition law must repress.
The Portuguese judicial confirmation of a fine for no-poach agreements is therefore a relevant milestone, not because of the undertaking concerned, but because it consolidates a broader premise: competition also takes place in recruitment, and freedom of work is also protected by preventing employers from agreeing among themselves on the limits of workers’ mobility.