In a decision dated June 20, 2025[LK1], the Competition Authority sanctioned four digital services companies for anti-competitive practices in the form of gentlemen’s agreements aimed at granting each other guarantees not to poach each other’s employees.
Between 2007 and 2016, four companies in the IT services sector – Alten and Ausy on the one hand, and Expleo and Bertrandt on the other – agreed not to poach each other’s employees.
These “gentlemen’s agreements,” which were mainly verbal or informal, were intended to prevent the poaching of talent, secure commercial relations, and control wage costs in a market marked by the strategic importance of human resources.
The French Competition Authority characterized these practices as anti-competitive agreements that artificially restricted competition in the labor market. It considered that by preventing professional mobility, these agreements deprived employees of better opportunities and distorted competition between companies. The companies involved were fined a total of €31.2 million for violating fundamental competition law in sectors where human resources are a key competitive factor. Initial analysis of non-solicitation clauses
An important distinction emerges from this decision: while general non-poaching agreements—which are informal and very general — constitute a restriction of competition by object, non-solicitation clauses are formalized, which makes them easy to review.
Non-solicitation clauses, whereby two parties agree not to directly approach or recruit the other party’s employees during the term of the contract, were found – in this case – to be in line with competition rules.
The Authority considered that these clauses could not be classified as a restriction of competition, in particular in view of their limited temporal and material scope (whether or not limited to a category of personnel) and the objectives they pursued
These principles identified by the Authority should therefore guide parties when drafting such clauses.
Non-solicitation clauses in practice
Non-solicitation clauses – not to be confused with non-solicitation of customers clauses – are widely used in business, particularly in commercial contracts. They generally aim to prevent one party from taking advantage of the collaboration to attract talent trained or recruited by the other party. The position of the French Competition Authority supports the idea that a non-solicitation clause may be valid under common law when it is precise, limited in time and scope, and pursues a legitimate objective without going beyond what is necessary to achieve that objective.
In the franchise sector, non-solicitation clauses are also common, particularly to prevent franchisors and franchisees from recruiting each other’s employees within the network.
Such a practice can help maintain stability within the network, but it must comply with the same principles in order to remain valid. In practice, franchisors are advised to:
– Specify whether the clause is reciprocal and to which employees it applies;
– Limit the duration of the clause—usually a few months to a year—after the end of the contractual relationship;
– Define the geographical or functional scope precisely;
– Provide for a lump-sum compensation in case of non-compliance;
– If possible, justify the clause with concrete objectives, such as the protection of training investments or the protection of know-how.
Franchise networks must ensure that their non-solicitation clauses are compliant, as they can be a useful complement to non-competition clauses.
Our firm assists companies, networks, and franchisors in securing their contractual practices and ensuring their compliance with competition law. Please do not hesitate to contact us if you have any questions on this subject.