Employee Poaching as An Abuse of Dominance Under Article 102 TFEU

Abstract

Poaching employees is an inherent aspect of competition for highly qualified talent. This practice is particularly, but not only, pronounced among tech giants, which engage in fierce competition to recruit skilled workers from their rivals. However, when, in a concentrated market, a dominant undertaking strategically targets and hires a large portion—or even the entirety—of a smaller competitor’s key personnel, this behavior can raise significant competition concerns. Such cases often fall outside the scope of merger control, particularly because they fail to meet the applicable thresholds (Section II), warranting consideration of the issue under the abuse of dominance prohibition in Article 102 TFEU. This article—also drawing on relevant case law and scholarship regarding the category of “predatory hiring” under Section 2 of the Sherman Act—explores the conditions under which such poaching by a dominant undertaking may constitute exclusionary abuse (Section IV) and structural abuse (Section V) in both product and labor markets. The findings clearly demonstrate that competition law assessments of a dominant undertaking’s conduct must consider not only the product market but also the labor market, particularly in cases of significant market structure changes (Section III).