The European Commission Seeks Public Input On The Draft Revised Technology Transfer Block Exemption Regulation And Technology Transfer Guidelines

The European Commission has launched a public consultation on draft revisions of the Technology Transfer Block Exemption Regulation and the accompanying Guidelines. The proposed revisions aim to clarify the rules on market share thresholds, update the guidance for technology pools, and introduce new guidance on licensing negotiation groups as well as data licensing.

Background

Article 101(1) of the Treaty on the Functioning of the European Union ("TFEU") generally prohibits agreements between companies that restrict competition. However, pursuant to Article 101(3) TFEU, certain agreements may be exempted from this prohibition if they satisfy specific conditions. These include agreements that contribute to improving the production or distribution of goods, or to promoting technical or economic progress, while allowing consumers a fair share of the resulting benefits and without eliminating competition.

The Technology Transfer Block Exemption Regulation ("TTBER") provides a "safe harbour" from Article 101(1) TFEU for technology transfer agreements that satisfy certain conditions. The accompanying guidelines ("Guidelines") provide further guidance and explanations on the application of the TTBER and of the assessment of agreements falling outside the safe harbour of TTBER.

Technology transfer agreements involve the transfer of technology rights between two parties for the purpose of producing goods or services, either (i) by license, granting the lincensee permission to use certain technology rights or (ii) by assignment, transferring the ownership of the technology rights, while part of the risk associated with the exploitation of the technology remains with the assignor. Such agreements typically facilitate innovation and encourage the spread of new technologies, but they may also raise competition concerns.

The TTBER was first adopted in 2004 and last revised in 2014. The current TTBER and the Guidelines remain in force until 30 April 2026.

The European Commission's review

The Commission's revision of the TTBER and the Guidelines aims to address issues identified in the evaluation completed in November 2024, during which the Commission gathered input from stakeholders on the current TTBER and the current Guidelines. The purpose of the evaluation was to assess the practical functioning of the TTBER and the Guidelines in order to determine whether the Commission should allow the TTBER to expire, extend its duration, or prepare revised versions of the TTBER and the Guidelines. The evaluation concluded that, although the current TTBER and the Guidelines remain useful, updates were necessary to enhance legal certainty and to reflect market developments, including digitalisation and the increasing importance of data processing.

With the proposed revisions of the TTBER and the Guidelines, the Commission aims to promote innovation and technology dissemination while safeguarding competition. The draft revisions are intended to provide clearer guidance and to expand the scope of the framework.

Notable clarifications and updates:

• Market share thresholds: The TTBER applies only to parties whose market shares fall below certain thresholds, which includes thresholds for both product and technology markets. Feedback indicated practical issues in applying the thresholds for technology markets. The revised draft provides additional guidance and clarification on the threshold for technology markets and extends the so-called grace period during which the block exemption continues to apply after thresholds are exceeded – from two to three years.
• Technology pools: Technology pools are arrangements whereby two or more parties assemble a package of technology, which is licensed to contributors to the pool and/or to third parties. Technology pools are not covered by the TTBER but may, under certain conditions, fall outside the scope of Article 101(1) TFEU. Such agreements are to be assessed solely under the Guidelines. The draft Guidelines update the "soft safe harbour" conditions for technology pools, with the aim of enhancing transparency and preventing "double dipping" scenarios, in which licensees risk being charged multiple times for the same technology. (The "soft safe harbor" in the Guidelines focuses on qualitative factors rather than quantitative thresholds like market share, thereby creating a more flexible safe harbor to encourage pro-competitive collaborations.)

New areas of guidance:

• Licensing negotiation groups (LNGs): The revised draft Guidelines introduce guidance on the assessment of LNGs – arrangements whereby potential licensees agree to jointly negotiate the terms of technology transfer agreements. The Guidelines define both pro- and anti-competitive aspects of LNGs and introduce a "soft safe harbour" for such arrangements.
• Data licensing: In response to feedback on the current TTBER, some stakeholders requested guidance on data licensing agreements. The draft Guidelines now include a dedicated section on data licensing, aiming to enhance legal certainty for data licensing agreements, while taking into account the diversity of data types and the rapid evolution of market practices in this area – both identified by stakeholders as regulatory challenges.

Stakeholders are invited to submit feedback on the draft revised TTBER and the Guidelines until 23 October 2025. The Commission will take the contributions received into account when finalising the rules, prior to the expiry of the current TTBER.

Plesner comments

The draft revised TTBER and the Guidelines aim to address the gaps identified in the evaluation by providing more clarity and expanding the scope of the block exemption. However, the evaluation also indicated divergent stakeholder views on certain areas that have now been amended or newly introduced, which may pose challenges for practical application.

Notably, stakeholders expressed divergent views during the evaluation process on the competitive effects of LNGs. While technology right holders often regard them as potential buyer cartels, technology implementers generally support the introduction of guidance, arguing that LNGs can help reduce negotiation costs and information asymmetries in licensing.

The newly introduced guidance on LNGs in the draft has already prompted concerns. Some commentators note that a condition of LNGs being unlikely to restrict competition is that LNG members do not engage in coordinated behaviour, while at the same time allowing restricting bilateral negotiations with technology holders for a six-month period.

Interested parties may submit their contributions to the Commission here.

Read the European Commission's press release

View the draft revised Technology Transfer Block Exemption Regulation and the draft revised Technology Transfer Guidelines here

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