Restricted recruitment and distorted Competition: the Competition Authority strikes hard

Origin of the case and complaints notified

The case originated from a leniency application submitted in April 2018 by Randstad Digital (formerly Ausy), which disclosed the existence of no-poach arrangements between Randstad Digital, Alten, Expleo, Bertrandt and Atos

The FCA examined three separate grievances. The first concerned a broad no-poach agreement between Randstad Digital and Alten restricting the recruitment of business managers. The second related to an informal arrangement between Expleo and Bertrandt not to solicit or hire each other’s employees, as well as non-solicitation clauses embedded in certain commercial contracts. The third focused on alleged agreements between Randstad and Atos, including contractual non-solicitation provisions and a so-called “non-aggression pact” regarding the recruitment of engineering consultants.

Informal agreements limiting mobility in a key competitive sector

Regarding the first and second grievances, the FCA found that companies had entered into general and informal “gentlemen’s agreements” not to solicit or hire one another’s employees – particularly business managers.

These arrangements were not tied to specific projects or contracts and were unrelated to any legitimate cooperation between the parties. According to the FCA, they amounted to horizontal market-sharing practices, in breach of Article L. 420-1 of the French Commercial Code and Article 101(1)(c) TFEU.

In its analysis, the FCA emphasised that human resources are a key parameter of competition in the consulting sector. By agreeing not to solicit or recruit the employees of their competitors, the companies have greatly reduced competition in the sectors concerned, and they have also reduced pressure on wages and restricted the professional mobility of the employees.

Non-solicitation clauses in commercial contracts not deemed anticompetitive

As for the second and third grievances, the FCA reviewed certain non-solicitation clauses embedded in commercial contracts between Expleo and Bertrandt and between Ausy and Atos. However, these clauses were not considered to have an anticompetitive object or effect, mainly because they:

• Were limited in time, applying only during the execution of the relevant contracts and for a short period thereafter;

• Applied exclusively to a specific category of personnel involved in the performance of the contract; and

• Were confined to the scope of a determined contractual relationship with a single client.

As a result, the FCA excluded these clauses from the scope of its infringement findings under the second and third grievances.

Penalties and publication orders

The FCA applied its 2021 procedural notice on fines, despite objections raised by the companies concerned, who argued that this violated the principle of non-retroactivity of more severe criminal law.

The FCA rejected these arguments, stating that these guidelines were adopted to accompany the legislative reform of sanction criteria introduced by a 2021 ordinance, which applied to procedures initiated after its entry into force—as was the case here. It further asserted that the guidelines do not have binding legal force and therefore do not qualify as criminal law, and that the European courts have long accepted the application of new guidelines to past conduct.

The practices, classified as involving the allocation of sources of supply, were deemed to concern essential parameters of competition and thus to constitute particularly serious infringements.

The FCA imposed the following fines:

• 24 million EUR on Alten SA;
• 3.6 million EUR on Bertrandt SAS;
• 1.9 million EUR on Expleo France.

Randstad Digital was granted full immunity in application of the leniency program.

The FCA also ordered the publication of a summary of the decision on LinkedIn as well as in the specialist press.

This decision is subject to legal remedies.

The official press release on the original decision of the FCA is available here in French.