New EU Technology Transfer Block Exemption Regulation: Key Changes And Practical Implications

On 16 April 2026, the European Commission adopted a revised Technology Transfer Block Exemption Regulation (the "Revised TTBER") and Guidelines on the application of Article 101 of the Treaty on the Functioning of the European Union to technology transfer agreements (the "Revised Guidelines"). The Revised TTBER and Revised Guidelines enter into force on 1 May 2026, replacing Commission Regulation (EU) No 316/2014 (the "Previous TTBER"). While the fundamental architecture of the block exemption framework remains intact, the Revised TTBER and Revised Guidelines introduce a number of targeted modifications intended to reflect developments in licensing practice, in particular the increasing importance of data, digital technologies and collaborative innovation models.

Background

Article 101(1) Treaty on the Functioning of the European Union (the "TFEU") prohibits agreements between undertakings which may affect trade between EU Member States and which have as their object or effect the prevention, restriction or distortion of competition. However, Article 101(3) TFEU permits exemptions from this prohibition, either on an individual basis or through block exemption regulations applicable to defined categories of agreements.

Technology transfer agreements are arrangements pursuant to which the holder of certain technology rights (including patents, design rights and software copyright) authorises another firm to use those rights, typically by way of licence, for the purposes of manufacturing goods or providing services. Such agreements play a significant role in promoting innovation and facilitating the dissemination of technology.

The Previous TTBER provided a block exemption for technology transfer agreements, and in its review the Commission identified a number of areas in which the framework of the block exemption could be refined to better reflect current market conditions and licensing practices. The Revised Guidelines are intended to help businesses interpret the Revised TTBER.

Changes

Safe Harbour

The Revised TTBER keeps the existing market share thresholds (20% for competitors and 30% for non-competitors). These thresholds determine whether an agreement can benefit from the safe harbour. A key development is the introduction of a simplified methodology for assessing market share at the pre-commercialisation stage, reducing the practical difficulties that arose under the Previous TTBER when the licensed technology had not yet been brought to market. The Revised TTBER clarifies that technologies which have not yet generated revenue may be attributed a zero-market share (and will therefore fall within the threshold), simplifying the application of the regime to pre-commercial or pipeline technologies.

Furthermore,where market share thresholds are exceeded during the term of a licensing agreement, the applicable grace period has been extended from two years to three years. This provides parties with additional flexibility where market positions evolve over time, particularly in fast-moving innovation markets.

Technology Pools

The Revised Guidelines provide further clarity in relation to technology pool arrangements, whereby multiple patent holders bundle a package of technology rights and license them collectively to contributors to the pool and/or to third parties, often in support of industry standards. The Revised Guidelines tighten the conditions under which such arrangements can benefit from the safe harbour. In particular, the Revised Guidelines stipulate that pools must implement safeguards against double dipping, ensuring that licensees are not subject to overlapping charges in respect of the same technology rights. The existing requirement that pooled rights be licensed on Fair, Reasonable and Non-Discriminatory (FRAND) terms has also been amended, with the Revised Guidelines making clear that this obligation extends to licences granted by the pool itself, and not solely to those granted by individual contributors.

Introducing Data Licensing Agreements

A significant development is the express treatment of certain data licensing agreements within the revised framework. The Revised TTBER itself covers data licensing only where the licensed data constitutes know-how or one of the technology rights listed in the Revised TTBER, or where the data licensing takes place within a technology transfer agreement and meets the conditions of Article 2(3) of the Revised TTBER. Beyond this, the Revised Guidelines provide, for the first time, that the Commission will generally apply the principles of the Revised TTBER and Revised Guidelines when assessing data licensing agreements under Article 101 TFEU where the licensed data concerns a database protected by copyright or by the sui generis right defined in the Database Directive, and the licence is for the purpose of producing goods or services.

In practice, where the licensed data qualifies as a "technology right" (for example, where it constitutes know-how or concerns a database protected by copyright or by the sui generis right defined in the Database Directive), the agreement may be assessed in the same way as a traditional technology licence and can benefit from the safe harbour where the relevant conditions are met. The Commission has indicated a generally favourable view of such arrangements, noting their potential to promote innovation and facilitate market entry.

This development is particularly relevant for businesses operating in data-driven sectors, including AI, advanced analytics and digital platforms, where access to data is often a key input. However, companies should be mindful that competition law compliance under the Revised TTBER sits alongside separate regulatory regimes governing data use and access at EU level, requiring a coordinated approach.

Refinement of Restrictions

The Revised TTBER sets out definitions of active and passive sales that mirror those found in the Vertical Block Exemption Regulation. Of particular note, cross-border bids made in response to public procurement tenders are treated as passive sales. This will be a welcome development for licensees active across several EU Member States seeking to respond to tenders without the risk of infringing territorial restrictions contained in their licence agreements. The aim of this clarification is to enhance legal certainty for businesses engaged in cross-border licensing arrangements.

The Revised Guidelines codify the CJEU's jurisprudence on pay-for-delay patent settlements, setting out the circumstances in which licensing arrangements entered into as part of a settlement may amount to a restriction of competition 'by object', having regard to the wider context and any transfer of value between the parties.

Licensing Negotiation Groups

The Revised Guidelines also introduce specific guidance on licensing negotiation groups. These are arrangements where multiple companies come together to negotiate licence terms collectively rather than individually. Such arrangements arise frequently in the context of industry standards, where multiple manufacturers require access to patents that are essential to a particular standard. These groups can improve efficiency (e.g. reducing transaction costs), but they also raise competition concerns because competitors are coordinating their behaviour. The Revised Guidelines set out the framework for analysing the competitive implications of these groups, drawing a clear line between legitimate collective negotiation and conduct that would amount to a buyer cartel. In particular, the Revised Guidelines identify the key considerations relevant to determining whether a given group is likely to give rise to a restriction of competition and outline practical steps that participants may adopt in order to mitigate the risk of contravening Article 101 TFEU. While the Commission decided not to include a formal safe harbour in the guidance on licensing negotiation groups, the Revised Guidelines indicate that market power is unlikely to exist where the members' combined share of demand on relevant technology markets does not exceed 15% and their combined share of supply on relevant downstream markets does not exceed 15%.

Transitional Period

The Revised TTBER provides for a one-year transitional period. Agreements in force on 30 April 2026 that satisfied the conditions for exemption under the Previous TTBER, but which do not meet the requirements of the new regulation, will continue to benefit from the exemption until 30 April 2027. Parties to existing technology transfer agreements should review their arrangements during this period and make any necessary amendments before the transitional relief expires. The Revised TTBER will remain in force until 30 April 2038.

Practical Implications

While the Revised TTBER and Revised Guidelines do not fundamentally change the EU's approach to technology licensing, they introduce important clarifications, particularly for digital, data-driven and collaborative business models. While these changes may appear incremental, their practical significance should not be underestimated, particularly in rapidly developing technology sectors where market positions are liable to fluctuate considerably over short periods.

In practice, licensors and licensees should:

• review agreements involving data or mixed (hybrid) licensing structures;
• reassess any collective licensing negotiation group arrangements and any participation in technology pools;
• review restrictions in licence agreements to ensure compatibility with the revised definitions of active and passive sales, including the classification of cross-border public procurement tenders as passive sales; and
• exercise caution in the context of patent settlement negotiations, having regard to the codified guidance on pay-for-delay arrangements and the circumstances in which a transfer of value may give rise to a restriction of competition by object.

Early engagement with these changes will be key to maintaining the benefit of the safe harbour and minimising competition law risk.