European Commission issues draft of new Technology Transfer Block Exemption Regulation

On 11 September 2025, the European Commission published a draft of a new Technology Transfer Block Exemption Regulation (TTBER) and new Technology Transfer Guidelines (TT Guidelines).

The current Regulation (EU) No 316/2014 of the European Commission of 21 March 2014 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to categories of technology transfer agreements (TTBER) expires in April 2026.

The drafts of the TTBER and TT Guidelines had been preceded by an evaluation and consultation process to gather insights into their practical benefits, which we have previously reported on. (See this link).

What are the TTBER and TT Guidelines?

The TTBER is a block exemption regulation issued by the European Commission, which under certain defined conditions exempts categories of technology transfer agreements restricting competition from the prohibition of agreements restricting competition under Article 101(1) TFEU.

Article 101(1) TFEU prohibits agreements that restrict competition. Article 101(3) TFEU allows exemptions under certain circumstances and allows the European Commission to exempt categories of agreements from the prohibition.

Technology transfer agreements allows one party to authorise another party to use certain technology rights. A technology transfer agreement is typically a licence agreement (e.g. patent, know-how and software license agreements) in which the licence is granted to enable the licensee to use the licensed rights or know-how for the production of goods or services. Generally, most licence agreements are compatible with Art. 101 TFEU.

The TTBER is intended to strengthen incentives for research and development, facilitate the dissemination of technology, promote competition and provide legal certainty for users. TTBER is accompanied by the TT Guidelines, which provide further guidance and explanations on the application of the TTBER and are an important tool for legal practitioners and indispensable in this field of law.

The TTBER allows far-reaching restrictions of competition since the benefits of technology transfer and the promotion of competition often outweigh the detriment to competition. Severe restrictions of competition, however, are not exempted by the TTBER and if a technology transfer agreement contains such restrictions, it will not benefit from the exemption in its entirety.

The drafts of the new TTBER and TT Guidelines follow these basic principles and provide for some changes.

Clarifications on the market share thresholds of TTBER

As expected, the market-share thresholds of the TTBER are not changed. The European Commission, however, is responding to the request for clarification and precision.

The European Commission proposes to adjust the sunset clause of the TTBER and extend the transition period for the exemption from two to three years if the market share of the parties exceeds the relevant thresholds during the term of the agreement. This will serve to improve legal certainty and predictability for companies.

By amending the recitals of the TTBER, the European Commission plans to reduce uncertainties on determining market shares. When determining market shares for the application of the threshold, technologies that have not yet generated sales of contract products will be considered to hold a zero market share. Such an amendment will be purely declaratory since this was previously stated in the TT Guidelines (margin no. 90) and will continue to be found there (margin no. 112). Ultimately, the amendment is only an upgrade for this rule in terms of binding force.

Further minor clarifications can be found in the TTBER's provision on the application of market share thresholds as well as in the TT Guidelines.

Adjustment of the guidance on technology pools in the TT Guidelines

Neither the current TTBER nor the draft of the new TTBER contain any provisions on technology pools. In technology pools, multiple technology right holders license their IP rights jointly. The reason for their exclusion from TTBER is that they are not based on agreements concluded between only two companies (i.e. bilateral agreements) whereas the TTBER only applies to bilateral agreements. The European Commission continues to reject the inclusion of multilateral agreements in the TTBER.

The future TT Guidelines, however, will contain guidance on technology pools. The European Commission responds to the request for more guidance and suggests adapting the “soft safe harbour” defined in the TT Guidelines.

“Safe harbour” means that companies do not expose themselves to competition-law risks through their conduct, provided they comply with the requirements of the “safe harbour”, in this case with the design of their technology pool. In this context, “soft” means that there are no quantitative requirements that matter (typcially market shares), but only qualitative ones.

The proposed adjustments to the “safe harbour” are intended to create transparency (through disclosure of the technology rights in the pool), “essentiality” (i.e. that only essential and not substitutable technologies are pooled), and avoidance of “double dipping” (i.e. double royalties for the same technology right).

New guidance on LNG in the TT Guidelines

The European Commission would like to respond to the request expressed in the evaluation and consultation to address the topic of Licensing Negotiation Group (LNG) in the future, if not in the TTBER, then in the TT Guidelines.

Licensing negotiation groups are potential licensees who jointly negotiate licence terms with the licensor. Supporters see them as an opportunity to facilitate access to important technologies through bundling while opponents consider them to be buyer cartels. As is often the case, particularly in EU competition law, the truth probably lies somewhere in the middle. In July 2025, the European Commission issued an informal guidance letter relating to the creation of a licensing negotiation group in the automotive sector. Now, a general guidance will be provided by the TT Guidelines.

The European Commission suggests adding a new chapter in the TT Guidelines and defining “soft safe harbour” with a quantitative sub-criterion. In summary, safe harbour has the following requirements:

• Open access to the LNG;
• Open communication of the LNG towards the licensor;
• The purpose of the LNG is solely the negotiation of licence terms;
• Restriction of information exchange in the LNG to a strictly necessary level;
• No collective boycott;
• No restrictions for the licensor to grant licenses to third parties;
• Limitation of jointly negotiated license fees to a maximum of 10% of the sale price of the products incorporating the licensed technology.

Beyond the safe harbour, application of the general exemption provision (Article 101 (3) TFEU) remains possible, and the European Commission provides guidance on this.

How about data licences?

According to the European Commission, the new TTBER should not contain provisions on data licences. In this respect, the status quo remains unchanged. The European Commission, however, is taking up the findings from the consultation and an expert opinion prepared for this purpose, and suggests addressing the question of data licences in the new TT Guidelines in a separate subsection in the chapter on technology rights.

The draft TT Guidelines states that it will “as a rule” apply the principles in the TTBER and the TT Guidelines to the licensing of data, provided that this data is contained in a database protected either by copyright or by the property right established in the Database Directive. Beyond that, a case-by-case assessment must be made to determine whether the principles of the TTBER can be applied to data licences.

Other remarkable changes

In line with the Vertical Block Exemption Regulation (VBER), the definitions of active and passive sales are proposed to be added to the TTBER. They will not differ from the ones in the VBER.

New TTBER: evolution instead of revolution

The European Commission issued a paper summarising the planned changes and other minor adjustments to the TTBER and TT Guidelines.

Overall, the European Commission does not intend far-reaching changes and wishes to retain the content of the TTBER in principle. Our earlier predictions regarding the revision have come true, more or less. The subtle changes expected in the new TTBER constitute an evolution rather than a revolution.

The insights the European Commission will gain from the consultation launched with the publication of the draft TTBER and TT Guidelines remain to be seen. The deadline for submitting comments is 25 October 2025.

Our crystal ball tells us that the future TTBER and TT Guidelines will not differ significantly from the drafts now presented. This means that a new TTBER will be similar to its predecessor, which is currently still in force. The European Commission is focusing on cautiously improving the TTBER. Consequently, companies should be able to continue most of their current practices.

We will only know for sure, however, in spring 2026 when the European Commission has adopted and published a new TTBER before the current TTBER expires on 30 April 2026.

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