Renewed interest from antitrust agencies in strategic minority investors, as European Commission fines Delivery Hero and Glovo

12 June 2025

The European Commission’s recent decision to fine Delivery Hero and Glovo for cartel conduct has placed a renewed spotlight on the antitrust risks that can arise from minority shareholdings in competitors. In this article we consider the case’s novel elements, and the lessons that deal teams and investors undertaking strategic minority investments should take from it.

The decision

On 2 June 2025 the Commission announced that it had fined Delivery Hero and Glovo a combined €329m for participating in a cartel in the online food delivery sector. According to the Commission, Delivery Hero’s 2018 minority stake in Glovo served as a conduit for the two firms to engage in three interlinked infringements of EU competition law between July 2018 and July 2022:

“No-poach” agreement: Delivery Hero and Glovo agreed not to hire or not to solicit certain groups of each other’s employees, restricting competition between them for talent.
Information exchange: Executives from both companies shared commercially sensitive information, including on new products, pricing, costs, promotions, and strategic plans.
Market-sharing: The companies artificially constructed a complementary footprint by agreeing on which one would enter new territories in which neither was present and which would remain in territories in which their activities overlapped.

It is understood that the case came to light following a whistleblower tip, as well as information provided by a national competition authority – likely in the context of a national merger clearance, where the two businesses had presented themselves as geographically complementary. Both companies – now merged and part of the same group – admitted the infringement and waived certain procedural rights in exchange for a 10% fine reduction. Glovo’s fine reportedly hit the statutory cap – underscoring the Commission’s view of the seriousness of the violation.

Firsts for the Commission

There are two relatively novel elements to this case that mark it out as significant.

While national competition authorities have for some time pursued “no-poach” cases – the most recent example being yesterday’s infringement decision in France – this marks the first infringement decision by the European Commission in respect of such an arrangement, or indeed any labour market-related anticompetitive conduct. That the Commission was also prepared to sanction companies for such activities does not come as a surprise. In a Competition Policy Brief published over a year ago, Commission staff indicated that they viewed agreements between companies not to recruit each other’s employees or to fix wages as “by object” infringements of Article 101 TFEU, which are inherently anticompetitive. Nevertheless, this decision confirms that such infringements are not merely a hypothetical possibility under EU law, and that the Commission intends to prioritise them for enforcement. It has at least one other case open involving similar conduct.
This is the first cartel sanctioned by the Commission to have been facilitated by a minority equity stake. In 2018, Delivery Hero acquired a non-controlling interest of around 15% in Glovo, before increasing its stake and finally acquiring Glovo outright in July 2022. The minority shareholding led to the infringing conduct in a number of ways:

The initial shareholders’ agreement included an obligation on the parties not to hire certain key employees – this was later expanded into a general non-solicit obligation covering all employees of both Delivery Hero and Glovo (excluding their delivery riders).
Strategic reports and information shared with Delivery Hero’s representative on the Glovo board were not ring-fenced, but instead circulated widely within Delivery Hero. Meetings were also set up for executives from both parties to discuss strategy and product initiatives, and informal communications – including WhatsApp messages – passed back and forth between them. The information shared went beyond what was necessary in order for Delivery Hero to monitor the financial performance of its investment in Glovo.
Pressure from Delivery Hero and coordination with Glovo ultimately evolved into an arrangement under which markets were allocated between them, with subsidiary businesses being sold from one party to the other to implement the cartel. This practice appears not to have been limited to EU markets.

Lessons for investors and deal teams

Minority investments in competitors are not unlawful in and of themselves. They are also prevalent across a number of sectors.

Nevertheless, they raise inherent antitrust risks, as a legal entity in which only a non-controlling, minority stake is held is not considered to form part of the same “undertaking” as the relevant investor. This means that the passing of confidential information between the two entities and/or coordination of their commercial strategies can amount to unlawful cartel conduct, whereas it would be unproblematic as between a parent company and its controlled subsidiary.

This case therefore offers important lessons for deal teams, corporate development departments, private equity investors, and their advisors when considering or managing minority investments in competitors. In particular, the following best practices should be front of mind when undertaking such transactions:

1. Assess competition risks early

Always consider whether the target is a competitor or a potential competitor. This is a pertinent question even if the transaction is not subject to merger control (because an insufficient shareholding or level of control is being acquired). Private equity investors should bear in mind that the activities of their controlled portfolio companies will be relevant when considering this question.

2. Consider deal documentation carefully

Any employee non-solicit provisions proposed for inclusion in the relevant share purchase agreement, shareholders agreement, or other such document should be carefully reviewed for competition law compliance. Such provisions are generally not permitted unless strictly necessary to protect legitimate business interests, and only where less restrictive measures (such as non-compete clauses, gardening leave provisions, or obligations to reimburse training costs in employment contracts) are insufficient.

Internal deal documents could also become disclosable in connection with later merger filings or competition investigations. Consideration should therefore be given to the rationale for the investment and how that is documented.

3. Manage information flows

Parties should implement protocols to safeguard competitively sensitive information (including employee compensation) during the negotiation and due diligence process. This might involve de-sensitising information through aggregation and anonymisation, and/or the use of ring-fenced “clean teams” to review sensitive information.

Post-closing, precautions should be put in place to ensure the minority stake does not create a conduit for the sharing of commercially sensitive information from the investee company to the minority investor.

For example, any appointee to (or observer on) the investee company board should not be involved in the investor’s competing activities, and be subject to an obligation not to pass on sensitive information. In some instances, depending on the factual circumstances, it may be necessary to even restrict data access for certain board members. Moreover, internal training is often required to ensure all parties are aware of their responsibilities, and formal protocols may need to be agreed between the parties and properly implemented.

Concluding thoughts

As noted above, the Commission had already indicated an intent to act against labour market cartels (although it is unclear whether it will do so in cases that involve only such conduct, given labour markets are usually no wider than national in scope). Moreover, the EU Courts have noted in at least one judgmentthe potential for a minority investment to be used to influence the competitive behaviour of an investee company, in breach of Article 101.

This case therefore represents a crystallisation of those identified risks, whilst serving as a reminder for firms to ensure they remain vigilant and have appropriate compliance measures in place.

The Commission has also previously shown an interest in the effects on competition of non-controlling minority shareholdings more generally (notably publishing a 2014 White Paper, and commissioning a 2020 study). Whilst proposals to extend the scope of EU merger controls to such shareholdings were ultimately not pursued, this case could well prompt the Commission to revive its longstanding concerns.

This is not just a European trend. In the U.S., litigation is underway over alleged collusion by financial minority investors, notably through alleged coordinated pressure on portfolio companies to adopt green transition strategies.