EU Imposes Fines for Market Sharing, No-Poach Restrictions and Information Sharing Facilitated by a Minority Stake

Commission Was Tipped Off by a Member State and an Anonymous Whistleblower

The Commission announced on 2 June 2025 that it has imposed fines totalling €329 million on Delivery Hero and Glovo for an illegal cartel. While the full decision is awaited, this is a landmark case in substance and scope as the first “no poach” cartel finding by the Commission, and the first case where collusion was facilitated by a minority shareholding (reported to be 15%). It highlights the antitrust risks that structural links between competitors such as minority shareholdings and joint venture partnerships can generate. This case stands as a warning, reinforcing the importance of controlling information flows to ensure that legitimate collaboration does not expand into illegal collusion.

A Minority Stake Enabling Three-Pronged Illegal Collusion

The cartel commenced in July 2018 when Delivery Hero acquired a minority interest in Glovo. The stake was progressively increased until July 2022 when Delivery Hero purchased Glovo outright, at which point the conduct no longer breached EU competition law.

The sanctioned arrangements had three prongs:

• A “no poach” arrangement: the Commission described this as initially comprising “limited reciprocal no-hire clauses for certain employees” but it later expanded to a general agreement not to actively seek to recruit the other’s staff;

• Information exchange: the competitors also exchanged commercially sensitive information, including information about commercial strategies, prices, capacity, costs and product characteristics; and

• A market sharing arrangement: the two businesses allocated EEA territories between themselves, avoided entering each other’s territories, and agreed who would take markets where neither was present.

Did the Merger Control Review Reveal the Cartel?

The merger between Delivery Hero and Glovo was notified to the Spanish competition authority at the end of 2021. It was granted unconditional clearance on 23 February 2022 on the basis that there was no overlap between the parties as Delivery Hero did not operate in Spain. The merger completed in early July 2022.

The Commission’s press release of 2 June 2025 notes that the own-initiative investigation was prompted by tip-offs from a national competition authority and an anonymous whistleblower. The Commission reports that it monitored the food delivery markets for a period before raiding the parties in June 2022, a few months after the merger was cleared and shortly before it completed.

In itself, an agreement between competitors to divide up geographical markets is not novel. However, with the benefit of hindsight, this aspect of the conduct presumably caused the lack of competitive overlap between the parties in Spain. While this facilitated the merger control review, it potentially raised a different antitrust red flag.

Minority Stakes and Information Flows Between Competitors

The Commission’s press release makes a point of confirming that owning a minority stake in a competitor is not illegal in itself.

However, it notes that the shareholder relationship “allowed Delivery Hero to obtain access to commercially sensitive information and to influence decision-making processes in Glovo, and ultimately to align the two companies' respective business strategies”. This serves as a reminder that a minority interest does not protect an investor from Commission enforcement under Article 101 TFEU. It reflects the warning in the Commission’s horizontal merger guidelines that structural links between competing firms may make it easier to reach terms of illegal coordination and to monitor for deviation. The US 2023 merger guidelines similarly flag the risk that a minority stake could substantially lessen competition.

There is a low bar for illegal information sharing in the EU. Standalone exchanges of confidential, strategic information between competitors in the EU is considered a “by object” infringement where the information concerned is commercially sensitive and sharing it could reduce uncertainty between competitors about the timing, extent or other details of their respective market strategies.

Exchanges of information about pricing strategy, production capacity, commercial strategy and demand forecasts have all been found to be infringements by object. The Commission reports that Delivery Hero and Glovo parties shared information about commercial strategies, prices, capacity, costs and product characteristics – clearly in the per se category and clearly beyond what a minority shareholder might normally expect to receive.

Against this context, and particularly in industry sectors where cross-shareholdings or joint ventures between competitors are common, companies should ensure that legitimate partnerships do not spill over into collusion due to illegal information flows. For this reason, joint ventures between competitors will often include detailed ring-fencing structures to control information flow, including to prevent the joint venture from becoming a conduit for information to flow between its competing parents. And competitors will typically ringfence information flow in a investment or M&A due diligence context to prevent it reaching the operational parts of the (potential) purchaser.

In the US, enforcement policies that were understood to create safe harbours for information sharing were withdrawn as information sharing has come under increased scrutiny in recent years, particularly in connection with algorithmic pricing applications.

The First EU “No-Poach” Cartel Finding

This is the first case where the Commission has sanctioned an agreement between competitors not to actively poach each other’s staff. The press release highlights that “this investigation … contributes to ensuring a fair labour market where employers do not collude to limit the number and quality of opportunities for workers but compete for talent”.

In an era where the EU and UK are particularly focused on growth and market dynamism, we are increasingly seeing antitrust agencies paying attention to competition in labour markets. The UK’s Competition & Markets Authority recently imposed fines in relation to illegal exchange of information about fees for freelance and employed labour in sports TV production and broadcasting markets to “present a united front” as regards pay offered.

The Commission is exploring, as part of its review of the merger guidelines, whether merger analysis should include the potential adverse effect of a merger on employment and labour markets, where a deal shifts the balance of power between employers and workers.

Beginning in the first Trump administration, no-poach and non-solicitation agreements have attracted increased attention from US antitrust enforcers. The US Department of Justice brought several criminal no-poach prosecutions, but to date only one of these resulted in a conviction (after the defendant pleaded guilty). Several private civil actions have resulted in monetary settlements. Labour market issues, including no-poach agreements, continue to be an enforcement focus. In February, the FTC formed a task force focusing on potential labour market issues, including no-poach agreements.

Horizontal arrangements concerning recruitment, remuneration or other aspects of talent acquisition or management are increasingly under the antitrust spotlight. Businesses may wish to check that their antitrust compliance training includes a clear steer that information flow and agreements with competitors in this area present high antitrust risk.

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