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AG opinion in CD Tondela: EU no-poach agreements generally 'by object' under Article 101 TFEU, save Meca-Medina-justified, proportionate measures preserving pandemic-affected sports integrity

Published on: 10 June 2025

Published by a LexisNexis Competition expert
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Tondela Case , Case C‑133/24 What are the practical implications of this case?

If the Court of Justice were to adopt AG Emiliou’s view, no‑poach pacts would be treated as restrictions 'by object', save where particular features indicate the clause at issue is not a 'by object' curb (thereby permitting an assessment of effects and justification), or where the clause is an ancillary restraint to a lawful transaction. AG Emiliou characterises no‑poach provisions as a type of allocation of a source of supply, expressly mentioned in Article 101(1)(c) TFEU. In doing so, he aligns with recent enforcement practice and guidance from the European Commission (the Commission’s press release of 2 June 2025 in AT.40795—Delivery Hero and Glovo; Competition Policy Brief of May 2024) and positions of national competition authorities (NCAs) and the courts (Judgement of the Court of Justice of 4 October 2024 in Case C‑650/22—FIFA), under which no‑poach arrangements are, as a rule, in most instances, harmful to the proper operation of competition...

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