The EU Court of Justice, in its CD Tondela ruling of 30 April 2026, clarified that a restriction of competition by object may be compatible with Article 101 of the Treaty on the Functioning of the European Union (TFEU) where, notwithstanding its anti-competitive object, it also pursues a pro-competitive objective linked to its particular context.
Background
Due to the COVID-19 pandemic and the resulting lockdown in Portugal, the Portuguese Football League (LPFP) decided on the prolongation of the 2019-2020 season beyond its scheduled end date.
The LPFP and clubs competing in the Portuguese First Division later announced they had reached an agreement not to poach, amongst themselves, players who unilaterally terminated their employment contract due to the COVID-19 pandemic and the exceptional extension of the season.
This no-poach agreement was suspended by the Portuguese competition authority, which qualified it as restrictive by object. The LPFP appealed this decision before the Portuguese Competition Court, which referred three questions to the EU Court of Justice (ECJ) for a preliminary ruling.
Findings of the Court
Preliminary observations: on the applicability of EU competition law
The Court first recalled its abundant case law relating to the applicability of EU competition law to the practice of sports. In line with, namely, its Superleague and FIFA cases, the ECJ reaffirmed that the practice of sports constitutes an economic activity that is subject to competition law, with the exception of rules that are adopted solely on non-economic grounds and relate to questions of interest solely to sport.
In the present case, the ECJ unsurprisingly considered that the composition of football teams constitutes an essential parameter of professional football competitions, which in turn, give rise to an economic activity. The Court therefore ruled that such rules fall within the scope of Article 101 TFEU.
On the qualification of an agreement as restrictive of competition by object
The ECJ first analysed the referring court’s third question, which it rephrased as whether the agreement at hand must be categorised as an agreement having as its object the restriction of competition.
In that regard, the ECJ highlighted that agreements that are anticompetitive by object can concern the goods or services supplied, as well as the resources needed to produce those goods or services (in this case, highly skilled professional football players).
The Court then recalled there are two types of behaviours that are anticompetitive by object : those that are manifestly harmful to competition, and those that are also harmful to competition, but less manifestly. Interestingly, the Court suggested that in both cases, national courts must thoroughly assess whether the behaviour presents a sufficient degree of harm, which must be analysed under the three following criteria:
(i) The content of the agreement
The Court deduced from the wording of the referring court’s third question that the agreement at hand constituted a coordination of conduct on the upstream market and therefore, a manifest
restriction of an essential competitive parameter in high-level sport, namely, the possibility of recruiting players already employed by a given club since. The ECJ equated such an agreement to an artificial partitioning of resources and a limitation to the players’ negotiating power.
(ii) The economic and legal context of the agreement
With regard to the economic and legal context of the agreement, the Court highlighted two specificities of the present case, which the referring court may not overlook.
Firstly, the ECJ highlighted the importance of common rules in the sector of high-level professional football, as an equality of opportunity between clubs is essential to ensure the proper functioning of competitions. The ECJ also emphasised, secondly, that this agreement was reached in the specific context of the COVID-19 pandemic and in order to ensure the integrity of the competition beyond its original date of end.
The Court nonetheless stated that neither COVID-19 nor the specificities of the sports sector constitute an exception per se to article 101(1) TFEU, but that these specific circumstances must be taken into account when assessing whether this agreement constitutes a restriction by object.
While these circumstances are highly case-specific, it is noteworthy that the ECJ emphasised the particular importance of the economic and legal context of a restriction to competition by object.
(iii) The objectives of the agreement
Lastly, regarding the objectives of the agreement at hand, the ECJ inferred from the referring court’s question that it pursues both an anticompetitive aim (to restrict competition between clubs), and a pro-competitive aim (to maintain stability in the clubs’ player rosters). For that reason, it found that the referring court could validly consider that the agreement is not anticompetitive by object.
This point seems to refine the assessment of restrictions by object by placing greater emphasis on contextual considerations.
The Court however highlighted the restrictive interpretation of this exception, by clarifying that it cannot apply to the hypothesis where an agreement would pursue both an objectively anticompetitive aim and other legitimate objectives which are neutral from a competitive standpoint.
On the justification by the pursuit of a legitimate objective, where the agreement is necessary for and proportionate to that aim
The ECJ recalled that, in line with its previous case law (namely, the Superleague case), justification by the pursuit of a legitimate objective cannot apply to restrictions by object. In that case, only Art. 101(3) TFEU may apply.
Conclusion
Overall, the CD Tondela case provides a useful description of the test national judges must apply when assessing whether an agreement qualifies as a restriction by object under Art. 101 TFEU. It also illustrates their analysis requires a cautious approach, as courts are required to examine a broad range of conditions to that effect, even when the nature of a restriction may seem manifest.
In particular, while it confirms that its case law on legitimate objectives is not applicable to restrictions by object, the ECJ is inviting national courts to assess potential restrictions by object within their specific economic and legal context, and to determine whether pro-competitive aims justifying an agreement could outweigh its anticompetitive objectives.