Since 1 May 2026, the new Regulation on the application of Article 101(3) of the Treaty on the Functioning of the European Union to categories of technology transfer agreements (Regulation (EU) 2026/877) (TTBER) has been in force. At the same time, the new guidelines (TT Guidelines) have replaced the previous ones. We reported on this (The new Technology Transfer Block Exemption Regulation has arrived!; New phase in the TTBER Revision: What the European Commission's evaluation reveals!; Draft TTBER and TT Guidelines: Key Changes and Clarifications).
What is it all about and what is actually changing? We will answer these and other questions in our „Q&A“ below.
What is the TTBER?
The TTBER is a regulation of the European Union. Under certain defined conditions it exempts categories of technology transfer agreements restricting competition from the prohibition of agreements restricting competition under Article 101(1) TFEU. This exemption from the prohibition is justified on the grounds that such agreements often promote the dissemination of technology and create an incentive for research and development. Even if they have anti-competitive effects or contain clauses with anti-competitive effects, they may, on the whole, be beneficial to competition. To ensure that this does not have to be assessed by legal practitioners and companies on a case-by-case basis using the difficult-to-apply conditions of Article 101(3) TFEU, the European Commission has generally exempted such agreements (hence the block exemption) from the prohibition and has defined the conditions for this general exemption. As part of the recent revision, the TTBER was amended and entered into force on 1 May 2026. It thus provides the framework for the competition-law assessment of technology transfer agreements under Article 101 TFEU.
To whom and which agreements does the TTBER apply?
As a regulation, the TTBER is directly applicable and binding in its entirety in all Member States. Technology transfer agreements include, for example, patent licence agreements whereby patent holders or licensors enable licensees to manufacture a patented product or use a patented process. The TTBER applies only to technology transfer agreements between two parties, e.g. a licensor and a licensee, and not to multilateral agreements. The technology rights covered by the TTBER include, amongst others, patents, software copyright, and utility models, as well as know-how. However, agreements whose primary purpose is the mere resale or distribution of software are not covered. The TTBER also does not apply to (pure) trademark licences. We will discuss data licences further below.
What market share thresholds apply under the TTBER?
An exemption under the TTBER is dependent, amongst other things, on the market shares of the contracting parties and provides for a market share threshold. The underlying rationale is that certain agreements only restrict competition and are subject to the prohibition of Article 101(1) TFEU, or are unlikely to be pro-competitive overall and thus covered by Article 101(3) TFEU, if the contracting parties possess market power. By way of simplification the market share is used as a proxy for market power. For agreements between competitors, a joint market share threshold of 20% applies to the exemption of technology transfer agreements under the TTBER. For agreements between non-competitors no single party may have a market share exceeding 30%. However, an exemption from the prohibition is not ruled out in the case of higher market shares. In such cases, however, the exemption is not based on the TTBER itself, but directly on Article 101(3) TFEU.
What are the TT Guidelines and what is their purpose?
The provisions of the TTBER are highly abstract in nature in order to cover the wide variety of forms that technology transfer agreements may take. To assist legal practitioners and companies, the European Commission has issued the TT Guidelines, which provide detailed explanations regarding the competition-law assessment of technology transfer agreements. Although these guidelines are not directly applicable law, they provide businesses with greater legal certainty. In addition to explaining the TTBER, the TT Guidelines also provide guidance on how the European Commission would handle cases where the market share thresholds of the TTBER are exceeded and the TTBER is therefore not applicable. In this respect, they clarify the difficult-to-apply conditions of Article 101(3) TFEU for cases where the contracting parties have higher market shares. Finally, in the TT Guidelines, the European Commission also addresses cases where the TTBER does not apply due to the restriction of its scope to agreements between exactly two parties, such as so-called „licensing negotiation groups“ and technology pools. We will discuss this further below.
What has changed with the new TTBER compared to the previous regulation?
In fact, not much has changed with the new TTBER. There are therefore no major differences between the new TTBER, which has been in force since 1 May 2026, and the previous TTBER of 2014. However, the European Commission has made a few clarifications:
For instance, the European Commission has adjusted the grace period that applies when the parties’ market shares only rise above the relevant thresholds during the life of the agreement. To increase legal certainty and predictability for businesses, this period has been extended from two to three years.
The European Commission has also provided a clarification intended to reduce uncertainties in the calculation of 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. This was already the case previously but is now expressly stated in the recitals of the TTBER.
Furthermore, the European Commission has clarified the method for calculating the licensor’s market share.
Finally, the European Commission has now – as in other recently updated block exemption regulations – incorporated the definitions of active and passive sales into the Regulation itself. These are important for very far-reaching restrictions of competition that are exceptionally permitted under the TTBER.
The European Commission has published a short paper outlining the amendments to the TTBER and the TT Guidelines.
Can the competition authority withdraw the benefit of the Block Exemption Regulation in individual cases?
Even under the old regulation, the European Commission or the competition authorities of the EU Member States could withdraw the exemption under the TTBER in individual cases. This power serves as a corrective to the very broad and generally worded exemption of agreements that restrict competition from the prohibition in Article 101(1) TFEU provided by the TTBER. Under the TTBER, any technology transfer agreement that restricts competition is exempted from the prohibition of agreements that restrict competition provided that the market share threshold is not exceeded and the agreement does not contain any particularly severe restrictions of competition (so-called hardcore restrictions), while certain clauses listed in detail (so-called excluded restrictions) are excluded from the exemption. This type of blanket exemption is also referred to as the „umbrella effect“ of the Block Exemption Regulation.
However, new is that the European Commission describes further scenarios in the TT Guidelines in which the competition authority may withdraw the benefit of the TTBER. This may be considered if access to the market by third-party technologies or potential licensees is restricted. The TT Guidelines cite as further examples the case where competition between licensors is restricted because a significant number of competing licensors agree on most-favoured-nation clauses in their licence terms, the case where the parties to the licence agreement unduly restrict customers’ ability to access the contracting parties’ products through a ban on passive sales, and the case where a network of similar cross-licences leads to royalties above the competitive level.
What happens to the exemption if the market share thresholds are exceeded during the life of the agreement?
For agreements to be exempted under the TTBER, the parties’ market shares must not exceed certain levels (see point 3 above) . However, it may happen that the parties exceed the relevant market share thresholds during the life of the agreement. In principle, this would mean that the exemption would end immediately, i.e. only after the market shares exceeding the threshold for the first time for the previous year have been identified, and the TTBER would no longer apply. This would be clearly detrimental to legal certainty. For this reason, the previous TTBER already provided for a grace period (the so-called „sunset clause“). The European Commission has extended this period from two to three years to provide greater planning certainty.
Has anything truly significant changed as of 1 May 2026?
Yes, although, as mentioned, not in the TTBER itself. However, the European Commission has, for the first time, included guidance on „Licensing Negotiation Groups“ (LNG) and on data licences in the TT Guidelines, as well as expanding the guidance for technology pools. We will take a closer look at this shortly.
What is an „LNG“?
LNG stands for „Licensing Negotiation Group“. In an „LNG“ several potential licensees join forces to negotiate and acquire together a technology licence from a licensor (or from a technology or licence pool). Such cooperation between potential licensees is relevant under competition law. The licensees are in competition with one another when it comes to the demand for licences and this competition could be restricted by such cooperation. Depending on the party concerned – licensor or licensee – different aspects of LNG are highlighted. Whilst one side, taking an extreme position, argues that LNG should be regarded as a buyer cartel, the other side points to the promotion of competition through LNG. As is so often the case, especially in EU competition law, the truth likely lies somewhere in the middle. This is why the European Commission felt compelled by the discussion to now also provide guidance on LNG and its assessment under competition law in the TT Guidelines. In doing so, it was able to rely on its existing practice, notably an informal guidance letter from summer 2025 declaring the creation of a licence negotiation group in the automotive sector does not raise competition law concerns.
And under what conditions are LNGs permissible under competition law?
An abstract assessment is not at all straightforward due to the case-by-case nature of the review. However, the TT Guidelines do at least set out criteria under which the competition law admissibility of a licence negotiation group is likely. These are primarily formal requirements, such as that the licence negotiation group should limit itself to the mere negotiation of licence terms, act transparently towards licensors and disclose its members. Furthermore, the European Commission also recommends defining the form, scope and functioning of the cooperation in a written agreement to facilitate an ex post-review. Additionally, members should ensure that the activities of the LNG do not develop into a coordination on downstream markets and that the exchange of sensitive information is limited to what is objectively necessary. The criteria are in some respects reminiscent of the guidance provided by the European Commission in the Horizontal Guidelines on the competition law assessment of joint purchasing arrangements and on the distinction from unlawful buyer cartels. In line with this, the benchmark for ruling out anti-competitive effects—as with (general) purchasing arrangements —is also set at a combined market share of 15%. In the case of LNG, this refers to demand for technology rights (i.e. the purchasing market) as well as to the sale of own products (i.e. the sales markets).
The European Commission did not wish to grant a safe harbour. „Safe harbour“ means that companies usually do not expose themselves to competition-law risks through their conduct, provided they comply with the requirements of the „safe harbour“. Such a safe harbour can relate to ‘hard’ criteria such as market shares or, alternatively, as a soft safe harbour to qualitative criteria. At the very least, the European Commission has identified the criteria that would have described the soft safe harbour (according to a previous draft of the TT Guidelines) as relevant criteria for the competition law assessment.
What are technology pools and why are there no provisions on this in the TTBER?
In a technology pool, holders of technology rights pool these rights for the purpose of bundled licensing to licensees. Such technology pools typically enable licensees to access a whole package of technology rights. To this end, the technology rights holders, or the pool itself enters into licence agreements with the licensees. This pooling of technology rights may be relevant under competition law; in any case, the licence agreements for the pooled rights may be relevant. A case for the TTBER? No, as mentioned, the TTBER only covers bilateral agreements, i.e. agreements between two parties, whereas technology pools constitute multilateral agreements involving several contracting parties. For this reason, there are no provisions on technology pools in the TTBER. The revision effective 1 May 2026 has not changed this. However, the European Commission had addressed the competition law assessment of technology pools in the old TT Guidelines, defining a soft safe harbour for technology pools there; in other words, as mentioned above, it set out the qualitative conditions which, if met, allow the participating companies to assume that the technology pool complies with EU competition law.
What is changing for technology pools?
With regard to technology pools, there had been criticism that the soft safe harbour defined in the old TT Guidelines might be too broad. The European Commission has now taken these concerns into account and adapted the soft safe harbour. Under the heading „Transparency“, the safe harbour now requires that the technology rights contained in the pool must be effectively disclosed to existing and potential licensees. Furthermore, the European Commission requires additional safeguards to ensure that only essential (and thus complementary) technologies are included in the pool. These additional safeguards entail that the methodology for assessing so-called essentiality must be effectively disclosed to potential and existing licensees. Thirdly, the technology pool must take measures to prevent „double dipping“, i.e. licencees paying royalties twice for the same technology right.
What do I need to bear in mind as a pool member?
As a pool member, it is advisable to review the existing pool to ensure it meets the stricter requirements of the new TT Guidelines, i.e. that the pool remains within the safe harbour:
- All interested holders of technology rights are free to participate in the pool
- (NEW) Transparency of the pooled technology rights
- Limitation of the pool to essential technologies and – NEW – disclosure of the methods used to assess essentiality
- Limitation of the exchange of information within the pool
- No exclusive licences for the pool
- Licensing on FRAND terms and – NEW – exclusion of double dipping
- No non-challenge clauses
- No prohibition of the development of competing products and technologies.
As technologies are constantly evolving, technology rights that were once essential may lose their status as essential technologies over time. It is therefore also advisable for pool members to regularly review whether their technologies remain essential. Should this no longer be the case, an alternative from a competition law perspective is to offer licensees a new licence without the now non-essential technology right at a lower royalty.
Does the TTBER also apply to data licences?
Data licences are becoming increasingly important in business and practice. The parties to such agreements often intend to agree on restrictions similar to those found in typical technology transfer agreements, such as the definition of sales territories and the like. Such restrictions are often relevant under competition law, i.e. they may infringe the prohibition in Article 101(1) TFEU and therefore require an exemption to be permissible. At first glance, it seems obvious to consider the exemption under the TTBER. However, data licence agreements are generally not technology transfer agreements within the meaning of the TTBER, as the data is not usually the subject of a technology right. This means that data licence agreements do not normally fall within the scope of the TTBER. The situation is different only if, exceptionally, the data is covered by a technology right falling within the scope of the TTBER. This may be the case, for example, with know-how, i.e. where the data constitutes know-how and the licence is granted to the licensee for the manufacture of contract products, i.e. goods or services based on that know-how.
In the run-up to the recast of the TTBER, there was therefore also discussion as to whether the scope of the new TTBER should be extended to data licences. The European Commission decided against this. Read more in our Legal Updates.
So, what now applies to data licences?
As mentioned above: normally not the TTBER. However, the European Commission has at least included guidance on the subject in the new TT Guidelines. According to these, a distinction must be made in the case of data licences:
If the licensed data consists of databases protected by copyright or sui generis rights and the licence is granted for the purpose of producing goods or providing services, the European Commission generally considers the TTBER and the TTBER Guidelines to be applicable analogously.
In other cases, the European Commission wishes to assess, on the basis of the circumstances of the individual case, whether the principles of the TTBER and the TTBER Guidelines can be applied analogously. The further the case is different from the licensing of data covered by intellectual property rights, the less likely it is that this assessment will be guided by the TTBER; instead, the general rules (Article 101(3) TFEU) will have to be applied, or another relevant block exemption regulation, such as the Vertical BER, will have to be identified.
How do other EU regulations on data access affect the assessment of data licences?
In particular: what applies if other Union legislation mandates the exchange of data? In such cases, the European Commission will take such data exchange requirements into account when applying the principles of the TTBER and the TT Guidelines. With regard to the data sharing agreements required under Chapter II of the Data Regulation, the European Commission explicitly states that these are generally compatible with Article 101 TFEU. This is intended to avoid conflicts between EU law requirements.
How quickly must contracts be adapted to the new TTBER?
The new TTBER provides for a one-year transition period for technology transfer agreements that were already in force on 30 April 2026 and were exempt under the old TTBER but are no longer exempt under the new one. Against this background, it is advisable to assess the compatibility of existing agreements with the new TTBER in good time (see also below regarding the need for adaptation). There is no explicit transitional provision for the TT Guidelines. Technology pools should therefore now assess their compliance with competition law against the benchmark of the new TT Guidelines.
Is a significant need for adaptation to be expected?
As the new TT Regulation hardly differs from the old one, a significant need for adaptation is generally not to be expected. However, this should be checked on a case-by-case basis as a precaution.
For technology pools and LNG, however, the revised or newly introduced guidance in the TT Guidelines may well give rise to a need for changes, which should be assessed immediately.
How long will the new TTBER apply and what happens in the event of new developments?
The new TTBER applies until 30 April 2038, i.e. for twelve years. This also corresponds to the duration of the old TTBER. For future developments that the European Commission could not foresee when adopting the TTBER, it may – in serious cases – wield the sharp sword of withdrawing the benefit of the exemption on a case-by-case basis. It could also amend the TT Guidelines in the interim – whilst taking into account aspects of the protection of legitimate expectations. The European Commission may take account of new developments that it could not have foreseen in the current TT Guidelines, and which are not addressed therein, in decisions or in informal guidance letters.
