COMMISSION STAFF WORKING DOCUMENT EXECUTIVE SUMMARY OF THE IMPACT ASSESSMENT REPORT Accompanying the documents Commission Regulation (EU) …/… on the application of Article 101(3) of the Treaty on the Functioning of the European Union to categories of technology transfer agreements and Communication from the Commission - Guidelines on the application of Article 101 of the Treaty on the Functioning of the European Union to technology transfer agreements
Date: 2026-04-16
Institutions: Directorate-General for Competition, European Commission
Subjects: EU competition policy, application of EU law, competition, competition law, exchange of information, horizontal agreement, inter-company agreement, patents licence, restriction on competition, technology transfer

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   EUROPEAN COMMISSION  Brussels, 16.4.2026  SWD(2026) 116 final  COMMISSION STAFF WORKING DOCUMENT  EXECUTIVE SUMMARY OF THE IMPACT ASSESSMENT REPORT     Accompanying the documents    Commission Regulation (EU) …/… on the application of Article 101(3) of the Treaty on the Functioning of the European Union to categories of technology transfer agreements              and              Communication from the Commission - Guidelines on the application of Article 101 of the Treaty on the Functioning of the European Union to technology transfer agreements {C(2026) 2477 final} - {SEC(2026) 112 final} - {SWD(2026) 114 final}  
 
 
A. Need for action 
What is the problem and why is it a problem at EU level? 

Technology transfer agreements are agreements under which one business authorises another to use 
its technology rights (for example, patents, design rights, software copyright) to produce goods or 
services.  These  agreements  promote  innovation,  by allowing  innovators to  earn  a  return on  their 
investments in research and development and by disseminating technology to businesses that need 
it to produce goods and services. 
Although  these  agreements  are  generally  pro-competitive,  in  some  cases  they  can  restrict 
competition,  contrary  to  the  prohibition  in  Article 101 of  the  Treaty  on  the  Functioning  of  the 
European Union (TFEU). Businesses must therefore assess the compliance of their technology transfer 
agreements with Article 101.  
The  Technology  Transfer  Block  Exemption  Regulation  (TTBER)  and  the  accompanying  Technology 
Transfer  Guidelines  (Guidelines)  provide  a  simplified  framework  to  help  businesses  with  their 
compliance assessments. The TTBER creates a legal safe harbour for technology transfer agreements 
that  meet  certain  conditions.  Agreements  that  fall  outside  the  safe  harbour  are  not  necessarily 
unlawful,  but  require  an  individual  assessment  under  Article 101.  The  Guidelines  explain  how  to 
interpret the TTBER and how to assess agreements that fall outside the safe harbour.  
The evaluation of the TTBER and Guidelines found that they remain useful instruments, but that they 
no longer  provide  sufficient  legal certainty in certain areas.  It is therefore  necessary to revise  the 
TTBER and Guidelines in three main areas: 
1.  Businesses  find  it  difficult  to  determine  whether  their  agreements  meet  the  TTBER’s  market 
share thresholds for technology markets 
The safe harbour provided by the TTBER is based on market share thresholds. These can be difficult 
for  businesses  to  apply  in  certain  contexts,  particularly  in  early-stage  licensing.  At  that  stage,  the 
technology may  not  yet  have  generated  product  sales,  making  it more  difficult  to  define  relevant 
markets  and  calculate  market  shares.  Also,  at  the  early  stages  of  adoption,  technologies  may  be 
subject  to  temporary  surges  in  demand  and  market  share,  potentially  causing  agreements  to  fall 
outside the TTBER safe harbour, without necessarily raising significant competition concerns. As a 
result, businesses may find it difficult to assess whether their agreements fall within the safe harbour.  
2. Businesses do not know how to apply Article 101 to data licensing agreements  
Since the last revision of the TTBER in 2014, data has become a key input for the digital economy. 
However, the current TTBER and Guidelines do not explain whether data licensing is covered by the 
TTBER, or how data licensing agreements should be assessed. This uncertainty can discourage data 
licensing.  
3. Businesses do not know how to apply Article 101 to licensing negotiation groups (LNGs) 
LNGs  are  arrangements  between  technology  implementers  to  negotiate  jointly  the  terms  of  the 
technology  licences  that  they  wish  to  obtain  from  technology  holders.  The  current  TTBER  and 
Guidelines do not provide guidance on how Article 101 applies to these arrangements. This leaves 
businesses uncertain as to whether participating in an LNG is lawful, and under what conditions. As a 
result, they may refrain from establishing or joining LNGs.  

What should be achieved? 

The  general  objective  of  the  initiative  is  to  ensure  the  effective  protection  of  competition,  while 
providing  adequate  legal  certainty  to  businesses.  The  specific  objectives  are  (i)  to  reduce  the 
complexity for businesses of applying the TTBER’s market share thresholds for technology markets, 
and (ii) to facilitate the assessment under Article 101 TFEU of data licensing agreements and LNGs.  

What is the value added of action at EU level (subsidiarity)? 

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The initiative can only be taken at EU level. The Commission has exclusive competence to adopt block 
exemption regulations for technology transfer agreements. Subsidiarity does not apply.  

B. Solutions 
What are the various options to achieve the objectives? What are the preferred options?  

For each problem, two options were considered. 

For the TTBER’s market share thresholds for technology markets, the preferred option simplifies the 
application  of  the  thresholds  in  cases  of  early-stage  licensing.  This  would  allow  businesses  to 
postpone  complex  market  share  assessments  for  several  years.  The  other  option  inserts  an 
alternative “3+” test in the TTBER. This would allow agreements to benefit from the safe harbour if 
at least three other substitutable technologies are present on the market. While this option would 
result in a (modest) simplification, it risks exempting agreements that could harm competition. 
For data licensing, the first option updates the current rules to clarify that data licensing agreements 
can benefit from the TTBER safe harbour where the licensed data qualifies as one of the technology 
rights (or know-how) already covered by the TTBER. The preferred option builds on the first option 
by  providing additional  guidance  on  the  assessment of  certain  data  licensing  agreements  that  fall 
outside the TTBER. It therefore provides a framework for assessing a broader set of data licensing 
agreements. 
For LNGs, the preferred option provides new guidance on the competition law assessment of LNGs, 
including  on  their  possible  pro-  and  anti-competitive  effects.  The  other  option  adds  a  soft  safe 
harbour, under which LNGs that comply with certain conditions would be presumed to comply with 
Article  101  TFEU.  The  preferred  option  would  increase  legal  certainty,  while  preserving  the 
Commission’s ability to intervene against anti-competitive LNGs. It takes into account that LNGs are 
a novel market practice, for which there is limited enforcement experience. 

C. Impacts of the preferred options 
What are the benefits of the preferred options? 

The preferred options in all three areas would increase legal certainty and therefore reduce the cost 
for businesses of assessing the compliance of their agreements with Article 101 TFEU. 
As regards the TTBER’s market share thresholds, the preferred option is would reduce the costs of 
applying the thresholds by 15-40 % on average per licensing agreement. The preferred option would 
also  facilitate  technology  licensing  in  early  licensing  scenarios,  thereby  supporting  technology 
dissemination.  
As regards data licensing agreements, the preferred option would reduce compliance assessment 
costs for the data licensing agreements that are covered by the new guidance by up to 33%. The new 
guidance  would  make  it  easier  for  businesses  to  enter  into  pro-competitive  data  licensing 
agreements, thereby promoting data sharing. 
As regards LNGs, the preferred option would facilitate the creation of pro-competitive LNGs and deter 
anti-competitive LNGs. 

What are the costs of the preferred options? 

The  TTBER  and  Guidelines  do  not  create  obligations  or  costs  for  businesses.  They  simplify  the 
application of Article 101 TFEU to technology-related agreements. The same applies to the preferred 
options.  

What are the impacts on SMEs and competitiveness? 

The preferred options are expected to create a more favourable framework for SMEs and may result 
in positive spillover effects on competitiveness. SMEs, like larger businesses, rely on the TTBER and 
Guidelines to assess the compliance of their technology transfer agreements with Article 101 TFEU. 
The  preferred  options  make  this  assessment  easier,  reducing  legal  uncertainty  and  reducing 

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compliance costs for SMEs. 
Clearer  rules  and  updated  guidance  can  be  expected  to  facilitate  technology  and  data  licensing, 
thereby promoting innovation and enabling businesses to produce more efficiently.  

Will there be other significant impacts? 

The preferred options ensure the effective protection of competition.  

Proportionality 

The preferred options are proportionate because they do not impose obligations on businesses.  

D. Follow-up 
When will the policy be reviewed? 

The revised rules will remain in force for 12 years. The Commission may adapt the rules before the 
end of this period in the event of substantial market changes.  

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