Introduction
The European Commission is currently seeking public feedback by 23 October 2025 on its proposed updates to the rules that govern how companies in the EU share technology with one another. These rules – known as the Technology Transfer Block Exemption Regulation (nr. 316/2014; “TTBER” – see publication in the Official Journal of the European Union), and its accompanying Guidelines on the application of Article 101 of the Treaty on the Functioning of the European Union to technology transfer agreements (“Guidelines” – see publication in the Official Journal of the European Union) – attempt to encourage innovation while ensuring that competition remains fair and consumers benefit from new technologies.
The legal framework
Through technology transfer agreements, as defined in the TTBER, one company allows another (via a licensing agreement) to use its technology (i.e. patents, design rights, plant breeder’s certificates, software copyrights …) to produce goods or services. While these agreements, which facilitate the diffusion of technology and incentivise R&D, are often pro-competitive, certain contractually agreed restrictions within them can have negative effects on competition and should therefore be prohibited.
The TTBER fits in the broader framework of Article 101 of the Treaty on the Functioning of the European Union (“TFEU”), which attempts to strike a balance: Article 101(1) TFEU prohibits agreements that restrict competition. Article 101(3) TFEU, on the other hand, allows for exemptions if such agreements contribute to improving production or distribution, or promote technical or economic progress, while allowing consumers a fair share of the resulting benefits and not eliminating competition.
The TTBER is such a “safe harbour” exemption in accordance with Article 101(3) TFEU to the prohibition in Article 101(1) TFEU, insofar as the technology transfer agreements in question meet specific conditions (“block exemption”). The underlying rationale is to give companies legal certainty that their agreements comply with EU competition law, provided they adhere to the TTBER’s requirements.
The TTBER first sets market share thresholds for the exemption to apply (20% for competitors, 30% for non-competitors; see Article 3 TTBER). If parties exceed these thresholds on the E.U. market, the technology transfer agreement must be individually assessed under Article 101 TFEU for competition restrictions, meaning that it is not automatically exempted. The TTBER also defines hardcore restrictions, such as price-fixing clauses, output limitations, allocation of markets/consumers, etc. (Article 4 TTBER). In the presence of hardcore restrictions, the entire technology transfer agreement loses the benefit of the block exemption. Further, the TTBER describes excluded restrictions (Article 5). Examples are exclusive grant backs from licensee to licensor or non-challenge clauses in relation to the validity of the licensor’s IP rights. Such excluded restrictions must be assessed individually and, where applicable, excluded from the benefit of the block exemption. In the presence of an excluded restriction, other aspects of the technology transfer agreement can still benefit from the block exemption.
The Guidelines accompanying the TTBER provide further details, explaining how the TTBER should be applied in practice (e.g. definitions, market share calculations, assessment of various types of restrictions, etc.). The Guidelines also clarify how to assess agreements that fall outside the scope of the TTBER, that must then be individually assessed under Article 101(3) TFEU instead.
The foreseen update
The current TTBER and Guidelines have been in place since 2014. After a recent evaluation, completed in November 2024, the European Commission found that while the framework remains useful and relevant, there is room for improvement in terms of reflecting recent market developments as well as developments in case law. The proposed revisions, therefore, aim to further enhance legal certainty for companies entering into technology transfer agreements while adapting the rules to today’s realities.
Some of the main amendments in the draft include:
- clearer rules on how to calculate market shares, which determine whether an agreement qualifies for the block exemption foreseen in the TTBER;
- an extension of the grace period for companies whose market shares temporarily exceeds the thresholds;
- updates to the rules for technology pools, i.e. arrangements where several companies combine their technology rights and license them as a package, which is especially important for standard-essential patents (SEPs);
- guidance for Licensing Negotiation Groups (LNGs), i.e. companies joining forces to negotiate technology licenses; the Guidelines clarify possible pro- and anti-competitive effects of LNGs, with a view to distinguishing them from buyer cartels;
- licensing of data as ‘technology transfer’, reflecting the growing importance of data in the digital economy; specifically, licensing of data is covered where the licensed data form part of a database that is protected by copyright or the EU sui generis right from the Database Directive (nr. 96/9/EC).
Call for input from stakeholders
Now, the European Commission is inviting all interested parties – including businesses, legal experts, industry groups, and members of the public – to submit their comments on the draft revised TTBER and Guidelines by 23 October 2025. The feedback will be taken into account before the new rules are finalised, ahead of the current TTBER’s expiry in April 2026. More information, including on how to participate in the consultation, is available on the Commission’s website.
In summary, the European Commission is working to ensure that the rules for sharing technology in Europe remain clear, effective, and up to date. This thus offers an opportunity for stakeholders and, more generally, anyone interested in innovation, competition, or technology to help shape the future of these important regulations.
If you want to have your say, now is the time to get involved!
For any questions or assistance, please reach out to our Intellectual Property Team | IP@simontbraun.eu – +32 (0)2 543 70 80
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This newsletter is not a legal advice or a legal opinion. You should seek advice from a legal counsel of your choice before acting upon any of the information in this newsletter.