In its preliminary ruling of 30 April 2026 in the 𝐂𝐃 𝐓𝐨𝐧𝐝𝐞𝐥𝐚 𝐜𝐚𝐬𝐞, the European Court of Justice (ECJ) reiterated that a by object qualification is never automatic or presumed. It must be interpreted strictly and assessed on the basis of (i) the content of the agreement, decision or practice, (ii) the economic and legal context and (iii) the objectives pursued.

The case concerned a temporary no-poach commitment between Portuguese professional football clubs in 2020. While the ECJ acknowledged that such an arrangement constitutes a manifest restriction of a key competitive parameter, namely the recruitment of players, and may also have an indirect impact on remuneration, it also made one thing very clear: 𝐜𝐨𝐧𝐭𝐞𝐱𝐭 𝐚𝐧𝐝 𝐨𝐛𝐣𝐞𝐜𝐭𝐢𝐯𝐞𝐬 𝐦𝐚𝐭𝐭𝐞𝐫.

Here, the COVID-19 context and the objective of ensuring a fair conclusion of the suspended competition are emphasised by the ECJ. The suspension of the ongoing competition created a risk that clubs would lose end of contract players before the season could be completed to the detriment of fair competition. The ECJ therefore gave strong guidance to the referring Portuguese court arguing against a by object qualification in the present circumstances.

In case of a by effect qualification, the ECJ reiterated that the pursuit of legitimate objectives may, in certain circumstances, outweigh restrictive effects.

The judgment also contains an important reminder on the broad understanding of what may constitute a decision of an association of undertakings. Although the no-poach concerned an agreement between clubs, the presence of the association’s president in the public announcement was sufficient for that characterisation.

𝐌𝐚𝐢𝐧 𝐤𝐞𝐲 𝐭𝐚𝐤𝐞𝐚𝐰𝐚𝐲𝐬:

1. No-poach agreements remain high-risk.
2. By object infringements are never automatic or presumed.
3. Associations should be careful: even a small role may have large consequences.

💬 𝐐𝐮𝐞𝐬𝐭𝐢𝐨𝐧𝐬? Feel free to reach out to our competition team or your usual contact person at 𝐜𝐨𝐧𝐭𝐫𝐚𝐬𝐭.

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