No-poach practices: the Autorité de la concurrence fines four companies in the engineering, technology consulting and IT services sectors

Human resources, a key competitive parameter in the engineering, technology consulting and IT services sectors

The engineering, technology consulting and IT services sectors are characterised by the strategic importance of human resources, which lie at the heart of the services offered by companies operating in these sectors.

These sectors also experience high employee turnover, which can disrupt business operations and the assignments entrusted to these service providers by their customers.

Introduction of gentlemen’s agreements

In this context, the sanctioned companies introduced no-poach agreements in the form of general gentleman’s agreements with no time limit.

• Agreement between Ausy and Alten

The purpose of the anticompetitive agreement between Alten and Ausy was to prohibit the companies from poaching (direct solicitation from the competitor) and hiring (spontaneous application) business managers, and for the companies to consult each other when moves were planned.

This general agreement, in place between 2007 and 2016, was revealed to the Autorité by the leniency applicant and corroborated by several items in the investigation file, which referred to the existence of “a gentlemen’s agreement not to chase each other’s management teams”

The scope of this agreement was not limited in duration and applied to all business managers, regardless of the mission to which they were assigned or the customer for whom they worked.

• Agreement between Bertrandt and Expleo

The no-poach agreement between Bertrandt and Expleo, in place between February and September 2018, similarly took the form of a gentlemen’s agreement on the non-poaching of their respective employees, and also covered hiring in the event of spontaneous applications.

Several items seized during the dawn raids revealed the existence of this agreement, the functioning of which was regularly recalled, with the two companies contacting each other on several occasions to “reiterate the message concerning the gentlemen’s agreement”, in particular to avoid engaging in a “hiring war”.

• Dismissal of the agreement between Ausy and Atos

With regard to a third objection notified by the Investigation Services, the Autorité cleared Atos and Ausy as there was insufficient evidence of a “non-aggression pact” concerning their human resources.

Dismissal of non-solicitation clauses in partnership contracts

The Investigation Services also accused Bertrandt and Expleo (objection 2) and Ausy and Atos (objection 3) of anticompetitive practices in the form of non-solicitation clauses in partnership contracts.

In view of the information in the case file and after analysing the content, economic and legal context and objectives of the clauses, the Autorité considered that, in this case, the clauses could not be qualified as restrictions with an anticompetitive purpose. The Autorité also considered that the documents in the case file were not sufficient to establish that the practices had led to anticompetitive effects.

The Autorité imposes a fine of €29,500,000 and orders the companies concerned to publish a summary of this decision on the social network LinkedIn

The Autorité recalls that (i) horizontal anticompetitive practices are among the most serious anticompetitive practices, (ii) they concerned sectors in which human resources are an essential criterion of competition, and (iii) they affected, in this case, employees, whose prospects for mobility and improved working and living conditions may have been impacted.

For these reasons, the Autorité has decided to impose fines totalling €29.5 million. The leniency applicant, Ausy/Randstad, has been granted full immunity from the fines incurred.

In addition, the Autorité has ordered the companies to publish a summary of this decision on the social network LinkedIn, as well as in electronic and paper editions of the newspaper Le Monde Informatique.