Comparison of French and Brazilian approaches to competition law and labor markets
By Luiz Felipe Rosa Ramos, Partner at Del Chiaro Pereira Advogados (DCPA), and Quitterie d’Arche, Partner at BORREL d’ARCHE.
When competition law meets labor law
For decades, the regulation of employment relationships was largely confined to labor-law instruments – collective bargaining, minimum-wage statutes, working-time directives – while competition authorities confined themselves to product and service markets. That jurisdictional divide is now eroding. Across the globe, enforcers have begun to transpose the classic toolkit of antitrust – cartel prohibitions, information-exchange doctrines, buyer-power analysis – to the hiring, retention, and remuneration of workers.
Several converging forces have accelerated this transformation. On one hand, the worsening of income inequalities – even in some of the most advanced economies – calls into question the ability of traditional antitrust tools to mitigate these disparities. On the other hand, the decline of so-called “hardcore” cartels has prompted competition authorities to refocus their vigilance on less conventional behaviors. Moreover, the growing interconnection between industrial organization and labor economics has highlighted the risks of monopsony and collusion in labor markets. Finally, the shortage of strategic skills in sectors such as digital technology, engineering, and healthcare might prompt companies to hinder talent mobility through no-poaching agreements or wage-fixing arrangements[1].
France and Brazil serve as particularly revealing case studies. In June 2025, the French Competition Authority (“FCA”) issued its first stand-alone decision sanctioning no-poach agreements (Decision 25-D-03[2]), while since 2021, Brazil’s Administrative Council for Economic Defense (“CADE”) has launched several investigations, mainly targeting exchanges of HR information and an emerging no-poach case.
This article aims to place these developments within the broader international trend of “social antitrust” to analyze the jurisprudential approaches and methodological differences between the two countries, to draw practical lessons for companies operating in France and/or Brazil, and to offer reflections on the future of competition law as a tool for protecting worker mobility.
The rise of labor antitrust: a global but uneven movement
The growing attention to labor market issues by competition authorities is part of a global trend, though the approaches remain diverse. In the United States, a landmark guidance came with the 2016 publication of the “Antitrust Guidance for Human Resource Professionals”[3] which classified naked no-poach and wage-fixing agreements as per se illegal. The European Union, followed by several member states, has since 2010 adopted similar principles through opinions, policy briefs and decisions, such as the sanctioning of two food delivery companies for a reciprocal no-poach agreement[4]. Beyond these regions, countries like Japan[5], the United Kingdom[6], Canada, Peru, Colombia, and Mexico have issued guidelines or launched investigations, signaling a growing international convergence. Yet important differences between jurisdictions persist, as will be illustrated through the French and Brazilian examples.
France: towards object-based repression of HR agreements
A decisive shift occurred with Decision 25-D-03, by which the FCA, for the first time, sanctioned two bilateral no-poaching agreements considered “in isolation” that is, independently of any broader collusion, for example regarding prices[7]. Entered into between competing companies active in engineering and IT services, these agreements led the FCA to impose a total fine of 29.5 million euros. The FCA confirms that, when taken in isolation, such no-poaching practices constitute anticompetitive conduct equivalent to buyer cartels targeting the labor supply, and therefore amount to restrictions of competition by object, given their nature, purpose, and legal and economic context. Importantly, the FCA did not forgo a contextual market analysis, specifying the category of employees involved and the scarcity of their skills, which made the coordination both plausible and harmful.
While in its decision the FCA distinguished between general no-poaching agreements (which were sanctioned) and non-solicitation of personnel clauses (which were not sanctioned due to their targeted nature – being limited to a specific category of staff, a particular project, etc. – and their limited duration), the FCA nevertheless made it clear that this analysis does not rule out the possibility that such clauses could be considered as restrictions of competition by object in future cases.
In practical terms, HR violations are now treated as standalone infringements of competition law, as subject to the same risks of sanctions (including severity coefficients) traditional cartels, the FCA having emphasized the central role of labor as a competitive parameter. Companies must therefore adapt their compliance programs, with HR departments becoming a key link in competition law compliance.
Brazil: an exploratory approach focused on information exchange
Since 2021, Brazil has seen at least four major cases: three involving the exchange of sensitive information (such as remuneration conditions and HR policies) and one emerging no-poach case. CADE has indicated that it would apply a rebuttable presumption of illegality to HR information exchanges.
From a methodological standpoint, CADE’s current enforcement posture displays a number of distinctive – and consequential – features. First, there is, at this stage, an absence of detailed market studies; leaving the contours of the relevant labor market, an indispensable predicate for assessing monopsonistic buyer power, largely undelineated. Second, some investigations sweep in dozens of companies across disparate economic sectors, thereby rendering any coherent analysis of coordinated effects markedly more complex. Third, CADE’s recent cases represent the first instances in which stand-alone exchange of employment-related information has been treated as presumptively unlawful, a position that stands in sharp relief to the more nuanced rule-of-reason framework applied, for example, by the U.S. Court of Appeals for the Second Circuit in Todd v. Exxon[8]. Finally, CADE has gone further by investigating multiple companies across diverse product markets for allegedly sharing competitively sensitive information through their human resources departments. This expansive approach diverges notably from the Swiss Competition Commission’s 2024 decision, which refrained from imposing sanctions in a comparable context and instead opted to issue guidance, expressly referring to the heterogeneity of the industries and undertakings involved[9].
Comparative analysis: convergences and fault lines
A comparative analysis reveals both convergences and divergences between the French and Brazilian approaches. In France, the practice under scrutiny in the 2025 Decision is bilateral no-poach agreements, while in Brazil, the focus has been on information exchanges, with no-poach cases only beginning to emerge. The French Competition Authority qualifies such agreements as restrictions by object, following a detailed contextual analysis, whereas in Brazil, there is a presumption of anticompetitive effects, but the relevant market remains ill-defined.
In France, the legality of non-solicitation clauses has been assessed based on proportionality, duration, scope, and connection to the contractual interest they are intended to protect, whereas in Brazil, such criteria have yet to be clearly defined for non-solicitation clauses agreed by companies outside of a merger review context. Internationally, France aligns with the prevailing EU and US trends, while Brazil seems to be still forging its own path.
From a procedural standpoint, it is noteworthy that the practices leading to the 2025 decision were brought to the attention of the French Competition Authority through a leniency application, which is a point of convergence with Brazil, where investigations have so far resulted from leniency applications.
Ultimately, both authorities declare that they seek to protect worker mobility and wages, but France provides greater legal certainty through a proportionality test, while Brazil risks creating uncertainty due to the lack of a stable analytical framework. This divergence can complicate HR management for multinational groups operating in both countries.
Practical guidance for companies
The FCA has recently reaffirmed its intends to maintain a high level of vigilance, particularly in the digital sector, which is deemed to be characterized by scarcity and importance of human resources, as was reiterated in its opinion on generative artificial intelligence (2024)[10]. This is therefore a call for vigilance for businesses.
Companies should strictly avoid any general no-poach or wage-fixing agreements with competitors, whether written or verbal.
When it comes to the exchange of HR information, companies must consult legal department before sharing any salary grids, bonus policies, and other remuneration elements (including fringe benefits) either bilaterally or multilaterally. Given the current status of investigations, if benchmarking is necessary, it should be conducted using aggregated and anonymized data provided by independent third parties in accordance with legal advice. HR teams should be fully integrated into competition compliance programs, including regular training, standard contractual clauses, and internal alert procedures.
It is also essential to conduct a thorough audit of existing clauses (including non-solicitation, non-compete and garden leave clauses) and practices in both France and Brazil, ensuring their compatibility with each country’s legal regime and making adjustments as needed. In the event of a dawn raid or information request, companies should promptly involve their legal department, safeguard legal privilege, and cooperate with authorities while immediately preserving their rights of defense.
Towards a competition law that protects workers?
France and Brazil exemplify a broader and, for many, urgent debate about the very purpose of competition law. An emerging chorus of commentators and enforcement authorities have argued that competition policy should evolve beyond its traditional focus on consumer welfare to also incorporate the well-being of workers as a relevant parameter. While France has already laid the foundations for a relatively clear doctrine, Brazil is still exploring its framework.
The question remains as to how far this extension will go: To what extent might antitrust law step into the role traditionally played by labor law in regulating mobility and wages? How to deal with the risk of over-enforcement that could stifle legitimate HR synergies[11]? The answer will depend on the ability of authorities to refine their analytical tools and companies to internalize a balanced compliance culture. The debate is ongoing, and its outcome will shape the balance between economic flexibility and worker protection in the coming decade.
Published in Debate Jurídico.
Notas de Rodapé
[1]: CMA, Microeconomics Unit « Competition and Market Power in UK Labour Markets », January 25th 2024.
[2]: FCA, 11 June 2025, Decision n°25-D-03 relating to non-poaching practices in the engineering, technology consulting, and IT services sectors
[3]: Department Of Justice, Antitrust Division, Federal Trade Commission, “Antitrust guidance for human resource professionals”, October 2016 – This guidance is inactive, it was replaced by : U.S. Department of Justice and the Federal Trade Commission, “Antitrust Guidelines for Business Activities Affecting Workers”, January 2025.
[4]: European Commission, Summary of Commission decision of 2 June 2025 relating to a proceeding under Article 101 of the Treaty on the Functioning of the European Union and Article 53 of the EEA Agreement.
[5]: Japan Fair Trade Commission, “Report of the Study Group on Human Resource and Competition Policy”, 15 February 2018.
[6]: CMA – Employers advice on how to avoid anti-competitive behaviour – 9 February 2023.
[7]: Until recently, HR practices were sanctioned when they were part of broader cartels like price-fixing: FCA, 25 June 1997, Decision n°97-D-52; FCA, 29 September 2016, Decision n°16-D-20 ; FCA, 18 October 2017, Decision n°17-D-20; FCA, 21 May 2024, Decision n°24-D-06 (decision which is the subject of a pending appeal before the Paris Court of Appeal) ; FCA, 18 October 2017, Decision n°17-D-20 ; FCA, 2 February 2009, Decision n°09-D-05; Confirmed on appeal (Paris Court of Appeal, 26 January 2010, No. 09/03532) and on cassation (Commercial Chamber of the Court of Cassation, 29 March 2011, Decision n°10-12.913).
[8]: Todd v. Exxon Corporation (2001), Second Circuit Court of Appeals.
[9]: See https://globalcompetitionreview.com/review/europe-middle-east-and-africa-antitrust-review/2026/article/switzerland-landmark-decision-clarify-labour-market-jurisprudence-further-guidelines-awaited.
[10]: FCA, Opinion n° 24-A-05 of June 28, 2024 relating to the competitive functioning of the generative artificial intelligence sector.
[11]: On the ongoing academic debate, see, among many others, Eric A. Posner & Ioana E. Marinescu, Why Has Antitrust Law Failed Workers? (2020) 105 Cornell Law Review 1343; Hiba Hafiz, Labor Antitrust’s Paradox (2020) University of Chicago Law Review: Vol. 87: Iss. 2, Article 5. Richard A. Epstein, The Application of Antitrust Law to Labor Markets -Then and Now (2022), 15 New York University Journal of Law and Liberty 327;