The European Commission has published a Staff Working Document that summarises the findings of its evaluation of the Technology Transfer Block Exemption Regulation (TTBER) and the accompanying Guidelines on the application of Article 101 of the Treaty on the Functioning of the European Union to technology transfer agreements.
The aim of the evaluation was to gather evidence on the functioning of the TTBER and of the accompanying Guidelines, for the Commission to decide if it should let the rules expire, prolong their duration or revise them. In view of its findings, the Commission will now launch an impact assessment to examine policy options for revising the rules.
The TTBER will expire on 30 April 2026, and of the accompanying Guidelines. The evaluation has shown the following:
- The TTBER and the Guidelines have been largely successful in ensuring the effective, efficient and uniform application of EU competition rules to technology transfer agreements. They have assisted companies in self-assessing the compliance of their technology transfer agreements with EU competition rules.
- The objectives of the TTBER and the Guidelines remain relevant to block-exempt only pro-competitive technology transfer agreements and to provide legal certainty for companies wishing to enter into such agreements.
The evaluation also shows that the TTBER and the Guidelines could be improved in certain areas to increase legal certainty and reflect recent market developments. These include the following:
- Some stakeholders identified practical difficulties in applying one of the two market share thresholds contained in the TTBER, namely the threshold for technology markets. Technology markets consist of the licensed technology right(s) and other technologies that are regarded as interchangeable by licensees.
- Stakeholders also suggested broadening the scope of the TTBER to cover the licensing of data or data rights, which have a growing importance in the digital economy, and/or providing guidance on this issue in the Guidelines.
- The safe harbour provided in the Guidelines for technology pools has generally worked well. It sets out the conditions that, if met, usually ensure that the pool does not breach EU competition rules. However, some stakeholders consider that these conditions do not always guarantee that only compliant pools benefit from the safe harbour.
- Some stakeholders consider that the Commission should provide guidance on the competition law assessment of licensing negotiation groups, namely groups of technology implementers who negotiate technology licences together.
The Commission will now launch the impact assessment phase of the review to investigate the issues identified during the evaluation with a view to having revised rules in place by April 2026, when the current rules expire. The Commission intends to consult next month.
