The European Commission has today launched a public consultation , inviting all interested parties to comment on drafts of a revised Technology Transfer Block Exemption Regulation ('TTBER') and revised Guidelines on the application of Article 101 of the Treaty to technology transfer agreements ('Guidelines').
Technology transfer agreements are agreements by which one firm authorises another firm to use certain technology rights – such as patents, design rights or software copyrights – to produce goods or services. Because these agreements facilitate the diffusion of technology and incentivise research and development, they are often pro-competitive, but some (restrictions in these) agreements can also have negative effects on competition.
In this context, the TTBER exempts technology transfer agreements that meet certain conditions from the prohibition of anti-competitive agreements laid down in Article 101 (1) of the Treaty on the Functioning of the European Union ('TFEU'), with the aim of facilitating the diffusion of technology, strengthening the incentives for research and development, and promoting innovation. If companies design their technology transfer agreements in accordance with the conditions of the TTBER, they have legal certainty that their agreements comply with Article 101.
The Guidelines provide guidance on the application of the TTBER and on the assessment under Article 101 TFEU of technology transfer agreements that fall outside the block exemption provided by the TTBER.
The revision of the TTBER and Guidelines follows an evaluation of the current rules, which have applied since 2014. The evaluation was completed in November 2024 and the revision aims to adapt the rules to reflect recent market developments and case law by the Court of Justice of the European Union, as well as to provide additional legal certainty for companies wishing to enter into technology transfer agreements.
The main proposed changes
The main proposed changes cover several areas, including:
- TTBER market share thresholds: The draft revised TTBER and Guidelines provide more clarity on the application of the TTBER's market share thresholds for technology markets (the TTBER contains thresholds for both product markets and technology markets). They also extend by one year (to three years) the grace period during which the block exemption continues to apply in cases where the parties' market shares rise above the TTBER thresholds during the life of the agreement.
- Technology pools: In the draft revised Guidelines, the conditions of the soft safe harbour for technology pools have been modified to increase legal certainty and ensure compliance with Article 101 TFEU. Technology pools are arrangements under which several technology owners assemble their technology rights in a package which they license to pool members and third parties. Pools play an important role in the licensing of patents that are essential for the implementation of technology standards ('standard-essential patents'). The proposed modifications notably aim to improve transparency on the technology rights included in the pool and their essentiality.
- Licensing Negotiation Groups ('LNGs'): The draft revised Guidelines include new guidance for the competitive assessment of LNGs. These are arrangements under which technology implementers jointly negotiate the terms of technology licences that they wish to obtain from technology owners. The Guidelines now outline the possible pro- and anti-competitive effects of LNGs, with a view to distinguishing genuine LNGs from buyer cartels, and introduce a soft safe harbour for LNGs that meet certain conditions.
- Data licensing: The draft revised Guidelines now cover the licensing of certain types of data, which is increasingly important in the digital economy. In particular, they make clear that the Commission will apply the principles of the TTBER and Guidelines to data licensing for the purposes of production where the licensed data forms part of a database that is protected by copyright or the sui generis right defined in the Database Directive.
Next steps
