On 28 November 2024, I had the opportunity to speak at the 16^th Competition Law Congress organised in Warsaw by ‘Puls Biznesu’. During my presentation I addressed one of the latest hot topics in competition law - antitrust enforcement in labour markets.

It is not a surprise that the US was the first jurisdiction to apply antitrust in labour markets. In fact, such case law originated not from Knorr-Bremse/Wabtec (2018) or High-Tech Employee Antitrust Litigation (2010), but in the 1920s. Nevertheless, it was the recent wave of enforcement by the Department of Justice and Federal Trade Commission that inspired the authorities overseas. These include the European Commission (EC), which investigated similar conduct in food delivery (2024) and building data centres (2024).

Also, once the EC condemned no-poach and wage-fixing agreements as by-object restrictions (Competition Policy Brief of May 2024), other EU authorities immediately followed this approach. A notable example is the Polish Competition Authority (PCA), which announced opening no-poach investigations concerning transportation companies supplying two large retailers. In a press release of July 2024 about those investigations, the PCA explained its approach to antitrust enforcement in labour markets and published detailed guidance in that regard.

By using US and European examples, in my presentation I explored the following topics:

• definition of relevant market for labor, which does not need to intersect with relevant markets for output products or services,
• (re)definition of competition and competitors,
• explanation of authorities’ approach to wage-fixing and no-poach agreements,
• application of available exemptions, such as ancillary restraints, block exemptions, cooperation agreements, Article 101(3) TFEU (or its national equivalents),
• how to apply abuse of dominant position prohibition in labour markets,
• impact on merger control and acqui-hiring.

The fierce debate during the presentation only confirms that most of these questions are still awaiting definite answers.

If you are further interested in Polish antitrust enforcement in labour markets, please read my recent article in Competition Law Insight (behind paywall), where I comment on the PCA’s investigations and the detailed content of the Guidance, or feel free to reach out to me directly.