COMMISSION STAFF WORKING DOCUMENT 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

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 16.4.2026  SWD(2026) 114 final  COMMISSION STAFF WORKING DOCUMENT  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) 116 final}  
 
 
Table of contents 

1. 
2. 

INTRODUCTION: POLITICAL AND LEGAL CONTEXT ................................................................5 
PROBLEM DEFINITION ................................................................................................................... 12 

2.1.  What are the problems? ................................................................................... 12 
2.2.  Other areas of the rules that are not the subject of policy options ................... 17 
2.3.  What are the consequences of the problems and who is affected? .................. 17 
2.4.  What are the problem drivers? ......................................................................... 23 
2.5.  How likely is it that the problems will persist? ................................................ 27 
3.  WHY SHOULD THE EU ACT? ......................................................................................................... 28 

3.1.  Legal basis ....................................................................................................... 28 
3.2.  Subsidiarity: added value of EU action ........................................................... 28 
4.  OBJECTIVES: WHAT IS TO BE ACHIEVED? ................................................................................ 28 

4.1.  General objectives ............................................................................................ 28 
4.2.  Specific objectives ........................................................................................... 29 
5.  WHAT ARE THE AVAILABLE POLICY OPTIONS? ..................................................................... 30 

5.1.  What is the baseline from which options are assessed? ................................... 30 
5.2.  Description of the policy options ..................................................................... 30 
5.3.  Options discarded at an early stage .................................................................. 36 
6.  WHAT ARE THE IMPACTS OF THE POLICY OPTIONS? ............................................................ 37 

6.1.  The TTBER’s market share thresholds for technology markets ...................... 39 
Impact on competition in the market ......................................................... 39 
6.1.1. 

6.1.2. 

6.1.3. 

Impact on businesses (including SMEs) .................................................... 40 

Impact on European innovation and competitiveness ............................... 42 

6.2.  Data licensing ................................................................................................... 44 
Impact on competition in the market ......................................................... 44 
6.2.1. 

6.2.2. 

6.2.3. 

Impact on businesses (including SMEs) .................................................... 46 

Impact on European innovation and competitiveness ............................... 47 

6.3.  Licensing negotiation groups ........................................................................... 48 
Impact on competition in the market ......................................................... 48 
6.3.1. 

6.3.2. 

Impact on businesses (including SMEs) .................................................... 50 

6.3.3. 

Impact on European innovation and competitiveness ............................... 50 
7.  HOW DO THE OPTIONS COMPARE AND PREFERRED OPTIONS ............................................ 51 

7.1.  The TTBER’s market share thresholds for technology markets ...................... 52 
Effectiveness .............................................................................................. 52 
7.1.1. 

7.1.2. 

7.1.3. 

Efficiency ................................................................................................... 52 

Coherence .................................................................................................. 52 

1 

 
 
7.1.4. 

Preferred option ......................................................................................... 53 

7.2.  Data licensing ................................................................................................... 53 
Effectiveness .............................................................................................. 53 
7.2.1. 

7.2.2. 

7.2.3. 

7.2.4. 

Efficiency ................................................................................................... 54 

Coherence .................................................................................................. 54 

Preferred option ......................................................................................... 54 

7.3.  Licensing negotiation groups ........................................................................... 55 
Effectiveness .............................................................................................. 55 
7.3.1. 

7.3.2. 

7.3.3. 

7.3.4. 

Efficiency ................................................................................................... 55 

Coherence .................................................................................................. 55 

Preferred option ......................................................................................... 56 

7.4.  REFIT (simplification and improved efficiency) ............................................ 56 
7.5.  Application of the ‘one in, one out’ approach ................................................. 56 
8.  HOW WILL ACTUAL IMPACTS BE MONITORED AND EVALUATED? .................................. 57 

8.1.  Data collection ................................................................................................. 57 
8.2. 
Indicators and monitoring framework ............................................................. 58 
8.3.  Limitations and proportionality ....................................................................... 60 
ANNEX 1: PROCEDURAL INFORMATION ............................................................................................. 61 
1. 
LEAD DG AND DECIDE PLANNING REFERENCES .................................................................... 61 
2.  ORGANISATION AND TIMING ...................................................................................................... 61 
CONSULTATION OF THE RSB ....................................................................................................... 62 
3. 
4. 
EVIDENCE, SOURCES AND QUALITY ......................................................................................... 65 
ANNEX 2: STAKEHOLDER CONSULTATION (SYNOPSIS REPORT) ................................................. 67 
1. INTRODUCTION ..................................................................................................................................... 67 
2. RESULTS OF THE CONSULTATIONS ................................................................................................. 67 
ANNEX 3: WHO IS AFFECTED AND HOW? ........................................................................................... 87 
PRACTICAL IMPLICATIONS OF THE INITIATIVE ..................................................................... 87 
1. 
2. 
SUMMARY OF COSTS AND BENEFITS ........................................................................................ 89 
RELEVANT SUSTAINABLE DEVELOPMENT GOALS ................................................................ 91 
3. 
ANNEX 4: ANALYTICAL METHODS ...................................................................................................... 92 
ANNEX 5: COMPETITIVENESS CHECK ................................................................................................. 94 
1.  OVERVIEW OF IMPACTS ON COMPETITIVENESS .................................................................... 94 
SYNTHETIC ASSESSMENT ............................................................................................................. 94 
2. 
COMPETITIVE ASSESSMENT OF THE MOST AFFECTED SECTORS ...................................... 95 
3. 
ANNEX 6: SME CHECK ............................................................................................................................. 96 

2 

 
 
Glossary 

Term or acronym 

Definition 

AI 

Artificial intelligence 

Commission 

European Commission 

Council 

Data Act 

Database Directive 

DG Competition 

Enabling Regulation 

Evaluation Report 

Council of the European Union 

Regulation (EU) 2023/2854 of the European Parliament and of 
the Council of 13 December 2023 on harmonised rules on fair 
access to and use of data, OJ L, 2023/2854, 22.12.2023 

Directive  96/9/EC  of  the  European  Parliament  and  of  the 
Council of 11 March 1996 on the legal protection of databases, 
OJ L 77, 27.3.1996, pp. 20–28 

Directorate-General 
Commission 

for  Competition  of 

the  European 

Regulation  No  19/65/EEC  of  2  March  1965  on  application  of 
Article  85  (3)  TFEU  to  certain  categories  of  agreements  and 
concerted practices, OJ P 36, 6.3.1965, p. 533-535 

Commission 
staff  working  document,  Evaluation  of 
Commission Regulation (EU) N° 316/2014 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, 22 November 20241 

Evaluation Support Study 

Final  report  on  the  Support  Study  for  the  evaluation  of  the 
Technology Transfer Block Exemption Regulation2  

Expert  Report 
Licensing 

on  Data 

Expert  report  on  data  licensing  and  data-related  provisions  in 
technology transfer agreements by Professor Peter Georg Picht3 

Guidelines 

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,  OJ  C 
89, 28.3.2014, pp. 3–50 

Horizontal Guidelines 

Communication  from  the  Commission  –  Guidelines  on  the 
applicability of Article 101 of the Treaty on the Functioning of 

1   https://op.europa.eu/en/publication-detail/-/publication/8e7134ee-62aa-11ee-9220-01aa75ed71a1/language-

en 

2   https://competition-policy.ec.europa.eu/document/download/2adab2d0-2cda-4d48-8aa5-

8381ac058eb9_en?filename=KD0124006enn_study_evaluation_of_the_technology_transfer_block_exempti
on_regulation.pdf 

3   https://competition-policy.ec.europa.eu/document/download/9eff6170-627c-4d31-81f8-

9d2317f41ea0_en?filename=kd0125011enn_TTBER_study.pdf 

3 

 
 
Informal Guidance Notice 

IP 

LNG 

NCA 

R&D  

SEPs 

SMEs 

TFEU 

TTBER 

Union Courts 

Vertical  Block 
Regulation 

Exemption 

the European Union to horizontal co-operation agreements, OJ 
C 259, 21.7.2023, pp. 1–125 

Commission  Notice  on  informal  guidance  relating  to  novel  or 
unresolved  questions  concerning  Articles  101  and 102  of  the 
Treaty on the Functioning of the European Union that arise in 
individual cases (guidance letters), OJ C 381, 4.10.22, pp. 9-13 

Intellectual Property 

Licensing negotiation group 

National Competition Authority of an EU Member State 

Research and development 

Standard-essential patents 

Small  or  medium-sized  enterprises,  namely  those  that  employ 
fewer  than  250  people  and  have  an  annual  turnover  not 
exceeding EUR 50 million and/or an annual balance sheet total 
not exceeding EUR 43 million4  

Treaty on the Functioning of the European Union 

Commission  Regulation  (EU)  No 316/2014  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, OJ L 93, 28.3.2014, pp. 17–23 

The Court of Justice of the European Union, composed of the 
Court of Justice and the General Court 

Commission Regulation (EU) 2022/720 of 10 May 2022 on the 
application of Article 101(3) of the Treaty on the Functioning 
of the European Union to categories of vertical agreements and 
concerted practices, OJ L 134, 11.5.2022, pp. 4–13 

4   See  Commission Recommendation of 6 May 2003 concerning the definition of micro, small and medium-

sized enterprises, OJ L 124, 20.5.2003, pp. 36-41. 

4 

 
 
 
 
1. 

INTRODUCTION: POLITICAL AND LEGAL CONTEXT 

(“TTBER”)  and 

This  initiative  concerns  the  revision  of  the  Technology  Transfer  Block  Exemption 
Regulation5 
the  accompanying  Technology  Transfer  Guidelines 
(“Guidelines”)6.  The  TTBER  and  Guidelines  provide  a  simplified  set  of  rules  for  applying 
competition law – in particular Article 101 of the Treaty on the Functioning of the European 
Union  (“TFEU”)  –  to  technology  transfer  agreements.  These  agreements  typically  take  the 
form  of licences, under  which  one  party  (the licensor) permits another  (the  licensee) to  use 
technology rights (for example, a patent) to produce goods or services.  

For a better understanding of this report, this Introduction begins by presenting the economic 
environment  in  which  the  initiative  takes  place,  with  a  focus  on  the  significance  of 
intellectual  property  licensing  in  the  economy  of  the  EU  (Section  1.1).  It  then  explains  the 
role of competition policy, including Article 101 TFEU (Section 1.2). This is followed by a 
description of the TTBER and the Guidelines, explaining how they facilitate the assessment 
of  technology  transfer  agreements  under  Article 101  (Section  1.3).  Lastly,  the  Introduction 
presents  other  relevant  EU  policy  initiatives  (Section  1.4)  and  discusses  how  technology 
transfer  agreements  are  assessed  under  the  competition  laws  of  other  major  jurisdictions 
(Section 1.5).  

1.1.  The economic environment: intellectual property licensing in the EU economy 

In  recent  decades,  worldwide  competition  in  innovation  has  intensified,  as  shown  by  the 
increase in  patenting  activity and investments in intangible assets7. According  to the World 
Intellectual  Property  Organisation,  3.7 million  patent  applications  were  filed  in  2024. 
Together  with  China,  the  USA,  Japan  and  Korea,  Europe  continues  to  account  for  a 
significant  share  of  patent  applications.  In  2024,  the  European  Patent  Office  (“EPO”)  was 
among  the  top  five  patent  offices  worldwide  in  terms  of  applications  received,  with  nearly 
200,000 filings8.  

In  that  context,  technology  licensing  enables  firms  to  monetise  their  intellectual  property 
rights (“IPRs”) and to access technologies that they cannot develop in-house9. Licensing can 
take  place  bilaterally  (licensor-licensee)  or  via  a  technology  pool  or  licensing  platform, 
whereby technology rights held by multiple owners (for example, patents that are essential to 

5   Commission  Regulation  (EU)  No  316/2014  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, OJ L 93, 
28.3.2014, p. 17. 

6   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, OJ C 89, 28.03.2014, p. 3. 

7   See OECD, Licensing of IP Rights and Competition Law. Background Note by the Secretariat, 2019, pp. 10-
12,  available  at  https://www.oecd.org/content/dam/oecd/en/publications/reports/2019/04/licensing-of-ip-
rights-and-competition-law_20595b8f/6a74221e-en.pdf. 

8  World Intellectual Property Organisation World Intellectual Property Indicators 2025, Geneva: WIPO, p. 10 
at  https://www.wipo.int/edocs/pubdocs/en/wipo-pub-941-17-2025-en-world-

available 

(Figure  1.2), 
intellectual-property-indicators-2025.pdf.  

9   See, for example, European Research Council, Use of patents: empirical evidence from a survey of grantees 
at 
(ERC), 

of 
https://erc.europa.eu/sites/default/files/2025-02/patents-empirical-evidence-survey-grantees.pdf.  

the  European  Research  Council 

available 

2024, 

seq., 

pp. 

16 

et 

5 

 
 
comply  with  a  standard)  are  assembled  into  a  package  and  licensed  out  under  a  single 
agreement.  

Although the scale of technology licensing is difficult to quantify10, earlier economic research 
provides an indication of the number and size of patent licensing agreements. One empirical 
survey estimates  that  approximately  10% of patents  registered with  the EPO are licensed11, 
while  another  places  the  figure  at  around  6%12.  Previous  studies  also  indicate  that 
approximately  20%  of  European  patent-owning  firms  license  out  their  patents13.  While 
technology  licensing  occurs  in  many  industries,  the  biopharmaceutical  sector  is  notable  for 
the  volume  and  economic  value  of  licensing  transactions14.  The  values  of  licensing 
agreements  involving  European  firms  vary  substantially,  with  some  patent-owning  firms 
reporting  less  than  EUR 100,000  in  annual  licensing  revenues  and  others  more  than 
EUR 100 million15. Overall, the evidence suggests that licensing plays a non-negligible role 

10   See  the  Evaluation  Report,  p.  16  and  the  Evaluation  Support  Study,  p.  165.  The  lack  of  statistics  on  the 
number of technology licensing agreements and the businesses that use them  is a long-standing issue. The 
impact  assessment  report  on  the  2014  revision  of  the  TTBER  (pp.  6-9)  also  highlighted  the  lack  of 
comprehensive data  on such agreements, and noted that,  following the modernisation of the EU’s antitrust 
rules  in  2004,  businesses  can  no  longer  notify  restrictive  agreements  to  the  Commission  for  negative 
clearance  or  individual  exemption  decisions.  The  Evaluation  Support  Study  (p.  110)  also  noted  data 
limitations for related agreements, such as technology pools and licensing negotiation groups. 

11   See Gambardella, A., Giuri, P. and Luzzi, A., ‘The market for patents in Europe’, Research Policy, 36, 8, 

2007, pp. 1174-1175 (analysing a sample of around 7000 patents). 

12   See  Torrisi,  S.,  Gambardella,  A.,  Giuri,  P.,  Harhoff,  D.,  Hoisl,  K.  and  Mariani,  M.,  ‘Used,  blocking  and 
sleeping  patents:  Empirical  evidence from  a  large-scale  inventor  survey’,  Research  Policy,  45,  7,  2016, p. 
1379 (analysing a sample of around 8000 patents).   

STI 

WORKING 

13   See  Pluvia  Zuniga,  M.  and  Guellec,  D.,  Who  Licenses  out  Patents  and  Why?  Lessons  from  a  Business 
Survey, 
at 
https://www.oecd.org/en/publications/who-licenses-out-patents-and-why_224447241101.html.  More  recent 
research  surveys  show  for  instance  that  only  2%  of  Spanish  firms  licensed  in  technology  in  the  period 
between 2005 and 2013: see Mendi,  P., Moner-Colonques, R. and Sempere-Monerris, J., ‘Cooperation for 
innovation and technology licensing: Empirical evidence from Spain’, Technological Forecasting and Social 
Change, 154, May 2020, pp. 119976 et seq. 

available 

PAPER 

2009/5, 

2009, 

12, 

p. 

14   See  the  Evaluation  Support  Study,  pp.  166  and  173;  Anand,  B.N.  and  Khanna,  T.,  ‘The  Structure  of 
Licensing Contracts’, The Journal of Industrial Economics, 48(1), 2000, p. 112; Kankanhalli, G., and Kwan, 
A.,  ‘Bargaining  power  in  the  market  for  intellectual  property:  Evidence  from  licensing  contract  terms’, 
Journal  of  Empirical  Legal  Studies,  21(1),  March  2024,  pp.  124  and  127.  Notwithstanding  their 
methodological  limitations,  recent  industry  surveys  provide  general  indications  regarding  the  volume  of 
deals  in  the  sector.  See,  for  instance,  EY,  Pharma  Licensing  of  the  Future,  2023,  p.  5,  available  at 
https://www.ey.com/content/dam/ey-unified-site/ey-com/en-gl/insights/life-sciences/documents/ey-gl-
pharma-licensing-of-the-future-digital-12-2024.pdf  (showing  an  average  of  approximately  680  licensing 
deals per year over the period 2017-2022); and Brown, A., Cairns, E. and Elmhirst, E., Pharma, Biotech and 
Medtech 
at 
https://www.medicpresents.com/medicfiles/419f_4877evaluatevantagepharmamedtech2019reviewv2.pdf 
(showing an average of approximately 150 licensing deals per year over the period 2015-2019). Indications 
regarding  the  value  of  licensing  deals  in  the  pharmaceutical  sector  are  provided,  inter  alia,  in  Q4  2025 
Biopharma  Licensing  and  Venture  Report,  JP  Morgan  Chase  &  Co.,  2026,  p.  7,  available  at 
https://www.jpmorgan.com/content/dam/jpmorgan/documents/cb/insights/outlook/jpm-biopharma-deck-q4-
2025.pdf.  

available 

Evaluate 

Review, 

2020, 

2019 

Ltd., 

16, 

in 

p. 

15   See,  for  example,  the  PATLICE  Survey  -  Survey  on  patent  licensing  activities  by  patenting  firms, 
Publications  Office  of  the  European  Union,  2013,  pp.  24-25.  These  results  are  consistent  with  anecdotal 
evidence on licensing deals (see, for example, Roche agrees biggest-ever obesity drug deal, Financial Times, 
12  March 2025,  available  at  www.ft.com  and  Theranexus and  Exeltis  (Insud  Pharma) announce  licensing 
agreement  to  commercialise  Theranexus  TX01  for  two  rare  neurological  disorders,  17  December  2024, 

6 

 
 
 
in  the dissemination of technology  and in  enabling firms to  access  the knowledge  that they 
need to innovate and compete in globalised markets. 

Other technological and market trends are also expected to lead to an increase in the level of 
licensing.  These  include  the  digitalisation  of  the  economy16,  the  growth  of  the  internet  of 
things  (“IoT”)17,  which  relies  on  technology  standards  to  enable  products  to  communicate 
with  each  other18,  the  growing  importance  of  data  as  an  input19,  and  the  expanding  role  of 
artificial intelligence (“AI”)20.  

Access to data – including via data licensing – is of strategic importance in a wide range of 
economic  sectors,  and  in  particular  for  the  training  of  AI  models.  According  to  an  OECD 
study, data access and re-use could generate social and economic benefits worth between 1% 
and  2.5%  of  GDP21.  Another  study  found  that  increasing  the  level  of  data  re-use  by 
businesses could add as much as EUR 1.4 trillion a year to the EU’s GDP by 202722.  

1.2.  The role of competition law and Article 101 TFEU  

EU competition law aims to prevent competition from being distorted to the detriment of the 
public  interest,  undertakings  and  consumers23.  Effective  competition  forces  firms  to  reduce 
their prices, improve the quality and variety of their products, lower their costs, become more 

at 

available 
https://live.euronext.com/en/products/equities/company-news/2024-12-17-theranexus-and-
exeltis-insud-pharma-announce-licensing).  However,  aggregate  data  on  the  monetary  value  of  the  EU 
licensing market tend not to distinguish between inter-group and intra-group licensing. As economic studies 
explain,  intra-group  licensing  represents  a  very  significant  portion  of  licensing  deals:  see  Lallement,  R., 
‘Marchés de la technologie et droits de propriété intellectuelle’, in Guellec, D., Madiès, T. and Prager, J., Les 
marchés  de  brevets  dans  l’économie  de  la  connaissance,  Conseil  d’analyse  économique,  2010,  p.  147 
(estimating that around 90% of licensing deals in the 1990s in France and Germany were intra-group). Intra-
group licensing, however, generally does not fall within the scope of Article 101 TFEU or the TTBER.  
16   See, for  example,  OECD,  Licensing  of  IP  Rights  and  Competition  Law,  2019,  p.  13,  available  at 

https://www.oecd.org/content/dam/oecd/en/publications/reports/2019/04/licensing-of-ip-rights-and-
competition-law_20595b8f/6a74221e-en.pdf 

17  Transforma Insights forecasts that the number of IoT connected devices will grow from 13 billion in 2022 to 
30 billion  in  2030  (retrieved  from  Statista:  https://www.statista.com/statistics/1194677/iot-connected-
devices-regionally/)  and  that  the  number  of  IoT devices  connected  via  cellular  technology  will  grow from 
1.7 billion in 2022 to 5.4 billion in 2030 (https://transformainsights.com/research/forecast/highlights).  

18   See the Evaluation Support Study, Section 3.2. 
19   See, for example, the Evaluation Report, p. 21. 
20   See, for example, European Commission,  Foresight Report 2025  – Resilience 2.0: Empowering the  EU to 
Thrive amid Turbulence and Uncertainty, Publications Office of the European Union, 2025, p. 13, available 
at: https://commission.europa.eu/strategy-and-policy/strategic-foresight/2025-strategic-foresight-report_en.  
21   See  OECD,  Enhancing  Access  to  and  Sharing  of  Data:  Reconciling  Risks  and  Benefits  for  Data  Reuse 
across Societies, OECD Publishing, Paris, 2019, p. 11, available at https://doi.org/10.1787/276aaca8-en. 
22   See  European  Commission,  Impact  Assessment  Report,  Proposal  for  a  Regulation  of  the  European 
Parliament  and  of  the  Council  on  European  data  governance  (Data  Governance  Act),  COM(2020)  767 
final,  2020,  p.  9,  available  at  https://digital-strategy.ec.europa.eu/en/library/impact-assessment-report-and-
support-study-accompanying-proposal-regulation-data-governance. 

23   See also the Report on the future of European competitiveness produced by Mario Draghi, Part B, In-depth 
analysis  and  recommendations,  2024,  p.  298,  which  states  that  “stronger  competition  generally  not  only 
delivers  lower  prices,  but  also  tends  to  stimulate  greater  productivity,  investment,  and  innovation”.  The 
report is available at: https://commission.europa.eu/topics/competitiveness/draghi-report_en  

7 

 
 
productive, and create more innovative products. Where the competitive process works well, 
it drives investment, innovation, productivity growth, business dynamism and employment24.  

EU  competition  law  contributes  to  these  benefits  by  tackling  practices  that  weaken 
competition, such as cartels and other anti-competitive agreements. DG Competition’s report 
Protecting competition in a changing world found that rising mark-ups since 2000 may have 
reduced EU GDP by 5–7%, and that this reduction would have been greater (by almost 25%) 
in the absence of the Commission’s enforcement action against anti-competitive practices25. 
Furthermore, according to DG Competition’s 2024 Annual Report, between 2012 and 2023 
the Commission’s antitrust enforcement action (including cartels) generated direct customer 
savings of between EUR 5 billion and EUR 9 billion per year on average, without taking into 
account the enforcement activity of the EU national competition authorities26. These savings 
reflect the price increases avoided as a result of enforcement actions27.  

A  significant  portion  of  these  economic  benefits  can  be  attributed  to  the  enforcement  of 
Article  101  TFEU.  Article  101(1)  prohibits  agreements  between  undertakings  that  prevent, 
restrict  or  distort  competition  and  affect  trade  between  Member  States.  Article  101(3) 
provides that the prohibition may be declared inapplicable in respect of agreements that are 
on  balance  efficiency-enhancing  and  fulfil  a  number  of  conditions,  including  that  the 
agreement does not allow the parties to eliminate competition in respect of a substantial part 
of the products concerned 28.  

To complement its enforcement action, the Commission issues  block exemption regulations 
and  guidelines.  Block  exemption  regulations  disapply  the  Article 101(1)  prohibition  in 
respect  of  categories  of  agreements  that  can  be  assumed  to  fulfil  the  conditions  of 
Article 101(3) TFEU,  thereby  providing  a  legal  safe  harbour.  Block  exemption  regulations 
and  accompanying  guidelines  promote  compliance  with  Article 101 TFEU  by  providing  a 

24   See DG Competition, Protecting competition in a changing world - Evidence on the evolution of competition 
in  the  EU  during  the  past  25  years,  2024,  pp.  15  and  143,  available  at: https://competition-
policy.ec.europa.eu/system/files/2024-
06/KD0924494enn_Protecting_competition_in_a_changing_world_staff_report_2024.pdf 
instance that productivity growth is greater in industries that face stronger competition). 

(showing 

for 

25   See Protecting competition in a changing world - Evidence on the evolution of competition in the EU during 

the past 25 years, p. 13, mentioned at footnote 24.  

26   Report  by  the  Commission  to  the  European  Parliament,  the  Council,  the  European  Economic  and  Social 
Committee and the Committee of the Regions, Report on Competition Policy 2024, COM(2025) 181 final, 
2025,  p.  29,  available  at  https://op.europa.eu/en/publication-detail/-/publication/38f17697-21d3-11f0-92ec-
01aa75ed71a1/language-en.  The  EU  national  competition  authorities  share  competence  with 
the 
Commission to apply Articles 101 and 102 TFEU. 

27   The  report  estimates  these  price  effects  by  comparing  observed  market  outcomes  with  counterfactual 
scenarios in which no intervention would have taken place. The estimation focuses on the concept of “direct 
customer  savings” a  methodology  inspired  by  guidance  developed  by  OECD.   Under  this  approach,  direct 
customer savings from a given intervention equal the product of estimates of (1) the price increase avoided 
as a result of the intervention, (2) the size of the affected market(s) or turnover, and (3) the expected duration 
of the price effect. 

28   The other conditions are that the agreement must (i) contribute to improving the production or distribution of 
goods  or  to  promoting  technical  or  economic  progress;  (ii)  it  must  allow  consumers  a  fair  share  of  the 
resulting benefits; and (iii) it must not impose restrictions that are not indispensable to the attainment of the 
afore-mentioned objectives. See also the Communication from the Commission, Notice - Guidelines on the 
application of Article 81(3) of the Treaty, OJ C 101, 27.4.2004, p. 97, paragraph 9. 

8 

 
 
simplified  set  of  rules  for  businesses  to  assess  the  legality  of  their  agreements.  They  also 
simplify the administration of the antitrust rules by the Commission and national competition 
authorities,  by  identifying  categories  of  agreements  and  restrictions  which  generally  do  not 
harm competition. 

1.3.  The TTBER and the Guidelines 

Like other agreements between undertakings, technology transfer agreements can fall within 
the  Article 101(1)  prohibition.  Businesses  wishing  to  enter  into  technology  transfer 
agreements must therefore assess their compliance with Article 10129.  

Technology  transfer  agreements  often  generate  pro-competitive  effects:  they  facilitate  the 
diffusion  of  technology,  incentivise  initial  research  and  development  (“R&D”),  promote 
incremental innovation, and enhance competition in downstream product markets. However, 
they can also raise competition concerns. For example, they can facilitate collusion between 
competing  firms,  impede  rivals’  ability  to  enter  or  expand  in  the  market,  or  limit  inter-  or 
intra-technology competition by reducing incentives to innovate.  

Council Regulation (EEC) 19/6530 (“the Enabling Regulation”) empowers the Commission to 
adopt block exemption regulations for certain categories of technology  transfer agreements, 
in  particular  “agreements  to  which  only  two  undertakings  are  party  and  which  include 
restrictions  imposed  in  relation  to  the  acquisition  or  use  of  industrial  property  rights,  in 
particular  of  patents,  utility  models,  designs  or  trade  marks,  or  to  the  rights  arising  out  of 
contracts  for  assignment  of,  or  the  right  to  use,  a  method  of  manufacture  or  knowledge 
relating to the use or to the application of industrial processes”.  

Based on the Enabling Regulation, the Commission adopted the TTBER. The TTBER applies 
to  agreements  between  no  more  than  two  undertakings  under  which  one  party  licenses  or 
assigns31 to  the other party certain  intellectual property rights32 (including know-how)33 for 
the purpose of producing goods or services. The block exemption provided by the TTBER is 
subject  to  certain  conditions:  the  market  shares  of  the  parties  to  the  agreement  must  not 
exceed certain thresholds34 and the agreement must not include certain severe restrictions of 
competition (“hardcore restrictions”)35.  

29   Since  the  modernisation  of  the  EU  antitrust  rules  in  2003,  businesses  can  no  longer  notify  restrictive 
agreements to the Commission to obtain a comfort letter or  individual exemption decision. They must self-
assess the compliance of their agreements with Article 101 TFEU.  

30   Regulation No 19/65/EEC of 2 March of the Council on application of Article 85(3) of the Treaty to certain 

categories of agreements and concerted practices, OJ 36, 6.3.1965, p. 35.  

31   More  precisely,  the  TTBER  covers  agreements  for  the  assignment  of  technology  rights  if  the  agreement 

provides for part of the risk of exploiting the technology to remain with the assignor.  

32   Patents,  utility  models,  design  rights,  software  copyrights,  semi-conductor  topographies,  supplementary 

protection certificates for medicines and plant breeder’s certificates (TTBER, Article 1(1)(b)). 

33   A package of practical information resulting from experience and testing that is useful for the production of 

goods or services. The know-how must be secret, substantial and identified (TTBER, Article 1(1)(i)). 

34   The market share thresholds are intended to ensure that the block exemption does not apply to agreements 

between undertakings that hold market power.  

35   Hardcore restrictions are serious restrictions of competition that generally cause harm to consumers, such as 

price fixing or output restrictions. 

9 

 
 
In  addition  to  the  TTBER,  the  Commission  also  adopted  the  Guidelines.  The  Guidelines 
explain the rationale for the provisions of the TTBER and provide guidance on how to apply 
them,  together  with  practical  examples.  They  also  provide  guidance  on  the  application  of 
Article 101 TFEU to technology transfer agreements that fall outside the block exemption36, 
as well as related agreements,  such as patent  dispute  settlement  agreements  and technology 
pools37. 

Together, the TTBER and the Guidelines provide a simplified set of rules for assessing the 
compliance of technology transfer agreements with Article 101 TFEU. It is important to note 
that  the  obligations  of  businesses  under  competition  law  in  relation  to  technology  transfer 
agreements  derive  from  Article 101;  the  TTBER  and  Guidelines  do  not  themselves  impose 
obligations  or  sanctions.  Where  a  technology  licensing  agreement  does  not  meet  the 
conditions  of  the  TTBER  and  is  not  covered  by  the  Guidelines,  that  does  not  imply  that  it 
infringes  Article  101.  It  simply  means  that  the  parties  must  carry  out  an  individual 
assessment, based on the Commission’s general guidelines and notices on the application of 
Article 101, the case law of the Union Courts and the Commission’s decisional practice. Such 
individual assessments are more complex and burdensome, in particular because the case law 
and decisional practice are case-specific and therefore not always easily transposable to other 
agreements or market contexts. Consequently, subject to the limits imposed by the Enabling 
Regulation, the greater the level of legal certainty that can be provided by the TTBER and the 
Guidelines, the less burdensome will be the task for businesses of assessing the compliance 
of their technology transfer agreements with competition law.  

The TTBER entered into force on 1 May 2014 and it expires in April 2026. The Commission 
conducted  an  evaluation  of  the  TTBER  and  the  Guidelines  in  advance  of  the  TTBER’s 
expiry.  The  evaluation  found  that  these  instruments  remain  relevant,  as  they  facilitate  the 
competition  law  assessment  of  technology  transfer  agreements by businesses. However, the 
evaluation also identified areas of the rules that do not function well, or as well as they could. 
It was therefore decided to revise the TTBER and the Guidelines. Section 2.1 below presents 
the areas of the rules that are the subject of policy options. It also outlines other areas of the 
rules for which amendments are proposed. 

The  revision  of  the  TTBER  and  Guidelines  contributes  to  the  policy  objective  of 
strengthening the competitiveness of the Union, by providing effective, clear and up-to-date 
rules  that  protect  competition  and  incentivise  businesses  to  innovate  and  become  more 
efficient,  as  set  out  in  the  Competitiveness  Compass38.  As  also  highlighted  in  the 
Competitiveness  Compass,  these  instruments  are  intended  to  facilitate  pro-competitive 
technology  licensing,  thereby  encouraging  technology  dissemination,  incentivising  initial 
R&D, and promoting innovation.  

36   For example, because the TTBER’s market share thresholds are not met. 
37   See Sections 4.3 and 4.4 of the Guidelines. 
38   See Communication from the Commission to the European Parliament, the European Council, the Council, 
the European Economic and Social Committee and the Committee of Regions, A Competitiveness Compass 
for the EU, 29 January 2025, COM(2025) 30 final, pp. 6 and 7. 

10 

 
 
1.4.  Other relevant EU legislation and Commission initiatives 

the 

innovation, 

technology  dissemination  and  promoting 

By  facilitating 
initiative 
complements  other  important  Commission’s  initiatives39.  These  include:  (i)  the  European 
Innovation  Act40,  which  seeks  to  create  legal  framework  conditions  to  remove  barriers  for 
bringing innovative ideas to market; (ii) the Cloud and AI Development Act41, which aims to 
strengthen the EU’s data centre capacity and digital sovereignty in the cloud sector; (iii) the 
EU Quantum Act42, which focuses on boosting research and innovation, scaling up industrial 
capacity, including pilot lines and a design facility, as well as reinforcing supply chains and 
resilience in the quantum sector; (iv) the European Research Area (ERA) Act43, which aims 
to  strengthen  R&D  investment  and  foster  the  circulation  of  knowledge  and  talent 
across Europe,  and  (v)  the  revision  of  the  Standardisation  Regulation44,  intended  to 
strengthen  the  European  standardisation  system  and  safeguard  Europe's  leadership  in 
developing high-quality, trusted standards.  

In the specific field of data access, the Union has already enacted legislation to promote the 
free flow of data and create  a single market  for  data, which is  intended to ensure Europe’s 
global  competitiveness  and  data  sovereignty45.  This  includes  the  Data  Act46,  which  is 
intended to empower consumers and businesses by giving them greater control over the data 
generated  by  their  connected  devices,  such  as  cars,  smart  TVs  and  industrial  machinery.  It 
lays the foundations for a fair, innovative, and competitive European data economy. 

More  recently,  the  Commission  has  proposed  to  further  refine  this  framework  through  the 
Digital Omnibus Regulation Proposal47, which aims to address issues identified in the early 
implementation  of  the  Data  Act,  by  providing  additional  clarity  and  legal  certainty,  while 
preserving the Act’s core objectives of unlocking data and fostering innovation. In addition, 
the Data Union Strategy48 identifies scaling up access to data, notably for AI applications, as 

39   See A Competitiveness Compass for the EU, mentioned at footnote 38. 
40   See 

“European 

webpage 

Innovation 

the 

the 

on 

Act”: 

https://research-and-

innovation.ec.europa.eu/strategy/support-policy-making/shaping-eu-research-and-innovation-
policy/european-innovation-act_en. 

41   See the webpage on “Cloud Computing”: https://digital-strategy.ec.europa.eu/en/policies/cloud-computing.  
42   See the webpage on “Quantum”: https://digital-strategy.ec.europa.eu/en/policies/quantum. 
43   See 

(ERA)  Act”:  https://research-and-

“European  Research  Area 

the  webpage  on 

the 

innovation.ec.europa.eu/strategy/support-policy-making/shaping-eu-research-and-innovation-
policy/european-research-area-era-act_en. 

44   See  the  webpage  “Commission  seeks  views  on  future  of  European  Standardisation”:  https://single-market-
economy.ec.europa.eu/news/commission-seeks-views-future-european-standardisation-2025-09-24_en. 
45   A  European  strategy  for  data,  Communication  from  the  Commission  to  the  European  Parliament,  the 
Council,  the  European  Economic  and  Social  Committee  and  the  Committee  of  Regions,  COM(2020)  66, 
19.2.2020. 

46   Regulation  (EU)  2023/2854  of  the  European  Parliament  and  of  the  Council  of  13  December  2023  on 
harmonised rules on fair access to and use of data and amending Regulation (EU) 2017/2394 and Directive 
(EU) 2020/1828 (Data Act), OJ L, 2023/2854. 

47  See  Proposal  for  a  Regulation  of  the  European  Parliament  and  of  the  Council  amending  Regulations  (EU) 
2016/679, (EU) 2018/1724, (EU) 2018/1725, (EU) 2023/2854 and Directives 2002/58/EC, (EU) 2022/2555 
and  (EU)  2022/2557  as  regards  the  simplification  of  the  digital  legislative  framework,  and  repealing 
Regulations  (EU)  2018/1807,  (EU)  2019/1150,  (EU)  2022/868,  and  Directive  (EU)  2019/1024  (Digital 
Omnibus), COM(2025) 837. 

48   See  Communication  from  the  Commission  to  the  European  parliament  and  the  Council  –  Data  Union 

Strategy. Unlocking data for AI, 19.11.2025 COM(2025) 835. 

11 

 
 
a strategic priority for the Union, alongside initiatives such as the European Innovation Act 
and  the  proposed  Cloud  and  AI  Development  Act  mentioned  above.  As  stated  in  President 
von  der  Leyen’s  political  guidelines,  access  to  data  is  not  only  a  major  driver  of 
competitiveness,  accounting  for  almost  4%  of  EU  GDP,  but  it  is  also  essential  for 
productivity  and  societal  innovations,  ranging  from  personalised  medicine  to  energy 
savings49.  These  initiatives  are  intended  to  facilitate  data  access  and  re-use,  support 
innovation  ecosystems  and  strengthen  Europe’s  technological  capabilities,  including  for  the 
development and deployment of AI. 

1.5.  Antitrust law on IP licensing in other major jurisdictions  

Technology licences may cover more than one world region or may indeed be worldwide in 
scope. Businesses may therefore need to assess the compliance of their agreements with the 
antitrust rules of multiple jurisdictions. Like the EU, several other major jurisdictions provide 
positive guidance and safe harbours for technology licensing agreements. 

The  USA,  China  and  Japan,  among  other  jurisdictions,  have  published  guidelines  on  the 
application of antitrust law to intellectual property licensing and SEP licensing.  The Antitrust 
Guidelines  for  the  Licensing  of  Intellectual  Property50  issued  by  the  US  Department  of 
Justice  and  Federal  Trade  Commission  in  2017  note  that  IP  licensing  arrangements  are 
typically welfare-enhancing, because they enable the combination of complementary factors 
of  production,  and  state  that  restrictions  in  IP  licensing  agreements  are  generally  assessed 
under  the  “rule  of  reason”,  i.e.  they  are  not  unlawful  per  se.  These  guidelines  also  provide 
safe  harbours  for  IP  licensing  agreements  and  R&D  agreements  between  firms  that  do  not 
hold  market  power.  The  Chinese  competition  authority  (SAMR)  published  Anti-Monopoly 
Guidelines  for  Standard  Essential  Patents  in  202451.  These  guidelines  aim  to  prevent  the 
abuse of SEPs, protect fair competition, encourage innovation, improve economic efficiency, 
and  safeguard  consumer  and  public  interests.  The  Japan  Fair  Trade  Commission  issued 
revised  Guidelines  for  the  Use  of  Intellectual  Property  in  2016.  These  guidelines  provide 
guidance for an effects-based analysis, as well as limited safe harbours. The United Kingdom 
inherited  the  TTBER  from  the  EU  when  it  left  the  Union.  The  UK’s  Competition  and 
Markets  Authority  (CMA)  is  currently  revising  the  UK  version  of  the  TTBER  and  has 
recommended  that  the  UK  government  adopts  a  revised  block  exemption  which  resembles 
the proposed revised TTBER.  

2.  PROBLEM DEFINITION 

2.1.  What are the problems? 

The  evaluation  found  that  market  and  other  developments  that  have  occurred  since  the 
adoption of the TTBER  and Guidelines in  2014  raise questions about  the effectiveness  and 
relevance of the rules in six areas52. Three of those areas are the subject of policy options that 

49   See  President  Ursula  von  der  Leyen’s  Political  guidelines  for  the  next  European  Commission  2024-2029, 

p. 10.  

50   https://www.justice.gov/atr/guidelines-and-policy-statements-0 
51   https://www.chinaiplawupdate.com/2024/11/chinas-state-administration-for-market-regulation-releases-anti-

monopoly-guidelines-in-the-field-of-standard-essential-patents/ 

52   See Section 5.1 of the Evaluation Report (Conclusions). 

12 

 
 
are impact-assessed in this report. The other three areas are outlined at the end of this section, 
together with an explanation of why those areas are not the subject of policy options. 

Problem  1  –  Businesses  find  it  difficult  to  determine  whether  their  technology  transfer 
agreements meet the TTBER’s market share thresholds for technology markets   

The evaluation found that market participants encounter practical difficulties when applying 
the  TTBER’s  market  share  thresholds  for  technology  markets53.  The  block  exemption 
provided by the TTBER is conditional upon the parties to the technology transfer agreement 
holding  market  shares  below  certain  thresholds.  In  particular,  the  TTBER  block-exempts 
agreements between competing undertakings where the parties’ combined market share does 
not  exceed  20%,  and  agreements  between  non-competitors  where  the  parties’  individual 
market  shares  do  not  exceed  30%.  These  thresholds  apply  both  in  relation  to  relevant 
technology  markets  (markets  for  the  sale  of  technology  by  licence)  and  relevant  product 
markets  (markets  for  the  sale  of  products  produced  using  the  licensed  technology).  The 
separate  thresholds  for  technology  markets  and  product  markets  ensure  that  the  TTBER 
captures  the  competitive  effects  of  technology  transfer  agreements  at  the  upstream 
(technology  licensing)  level  and  the  downstream  (supply  of  products)  level.  Competitive 
conditions may differ between the two levels, and firms may be active at one or both levels.   

To apply  the TTBER’s market  share thresholds for  technology  markets,  the parties’ market 
shares are calculated based on the presence of their technology rights in the relevant market 
where the contract products54 are sold (the “footprint methodology”)55.  Although the TTBER 
itself  does  not  mention  the  scenario  of  a  new  technology  that  has  not  yet  generated  any 
product  sales,  paragraph  90  of  the  Guidelines  briefly  notes  that  such  technologies  are 
considered to have a zero market share. Where the parties initially fall within the TTBER’s 
market share thresholds but their market shares rise above the thresholds during the life of the 
agreement, the TTBER provides a “grace period”, i.e. the block exemption continues to apply 
for two years following the year in which the thresholds are exceeded.  

For  technology  transfer  agreements  that  fall  outside  the  block  exemption,  for  example 
because the parties’ market shares exceed the TTBER’s thresholds, the Guidelines provide an 
additional  ‘soft’  safe  harbour.  This  states  that  if  an  agreement  does  not  contain  hardcore 
restrictions,  it  is  unlikely  to  infringe  Article 101 TFEU  where  there  are  at  least  four  other 
independently controlled and substitutable technologies on the market (the “4+ test”)56.  

Agreements that fall outside the block exemption because the parties’ market shares exceed 
the TTBER’s thresholds or which do not meet the 4+ test in the Guidelines are not presumed 
to  infringe  Article 101 TFEU.  These  agreements  simply  require  a  more  detailed  individual 
assessment, as explained in Section 1.3 above.  

53   See the Evaluation Report, p. 42. 
54   The contract products are the goods or services that are produced using the technology rights licensed under 

the technology transfer agreement. 

55   Thus, where a party to the agreement is active as a licensor of technology that is used in products sold on the 
relevant  product  market,  it  is  necessary  to  aggregate  the  sales  of  all  products  that  incorporate  that  party’s 
technology  (the party’s  own sales  and  the  sales  of  its  licensees)  and  then  calculate  their  share  of  the  total 
sales in that product market. 

56   See paragraph 157 of the Guidelines.  

13 

 
 
In the evaluation and impact assessment, some stakeholders reported practical difficulties in 
applying  the  TTBER’s  market  share  thresholds  for  technology  markets  and  thus  in 
determining whether their agreements could benefit from the block exemption. Specifically, 
they said that it is challenging to define the relevant market and calculate market shares when 
technologies  are  at  an  early  stage  of  development  or  commercialisation  (“early  licensing”). 
They  also  explained  that  limited  data  on  competing  technologies  and  uncertainty  about  the 
future commercial uptake of technologies and about their substitutability can make it difficult 
to  define  markets  and  calculate  shares57.  Stakeholders  further  highlighted  that,  at  the  early 
stages of technology uptake, there are often fewer than four alternative technologies  present 
on the market. This feedback suggests that paragraph 90 of the Guidelines does not provide 
sufficient  clarity  and  legal  certainty  on  the  application  of  the  TTBER’s  market  share 
thresholds  for  technology  markets  in  cases  of  early  licensing58.  It  also  indicates  that  the 
4+ test in the Guidelines may not address the difficulties faced by stakeholders.     

Problem  2  –  Businesses  do  not  know  how  to  apply  Article  101  TFEU  to  data  licensing 
agreements 

The evaluation found that data is increasingly important in the digital economy, and that the 
licensing of data has become more frequent, yet the TTBER and Guidelines do not expressly 
cover data or rights in data59. This calls into question the effectiveness and relevance of the 
rules60. 

Through  data  licensing  agreements,  businesses  license  the  data  that  they  hold  to  other 
businesses,  allowing  the  latter  to  use  the  data  in  their  business  activities.  Data  licensing 
enables  businesses  to  share,  access  and  monetise  data,  often  in  ways  that  are  essential  for 
innovation, market entry, and the development of interoperable products61. Data is however a 
complex  asset  that  does  not  always  fit  easily  into  existing  categories  of  technology  or 
intellectual  property  rights62.  For  this  reason,  businesses  do  not  know  how  to  assess  the 
compliance of their data licensing agreements with competition law63.  

57   See, for example, the Evaluation Report, pp. 28-31 and the Evaluation Support Study, pp. 66-67, 83-88. 
58   For  example,  some  stakeholders  noted  that  when  technologies  have  long  development  timelines  and 
licensing occurs at an early stage, the parties do not have data on the future market share of the technology. 
However, in that scenario, it follows from paragraph 90 of the Guidelines and Article 8(e) of the TTBER that 
the agreement can benefit from the block exemption, provided that it does not contain hardcore restrictions. 
See, for example, the Evaluation Support Study, p. 85. 

59   See  the  Evaluation  Report,  p.  42.  The  absence  of  guidance  on  data  licensing  is  not  surprising,  since  data 
licensing  is  a  relatively  new  market  development  which  was  not  significant  in  2014.  See  the  Evaluation 
Report, Section 3.2. 

60   See the Evaluation Report, p. 42. 
61   See the Expert Report on Data Licensing, p. 12. 
62   See  Graux,  H.,  What  is  data  ownership,  and  does  it  still  matter  under  EU  data  law?  An  exploration  of 
traditional concepts of data ownership, and of the expected impact of the Data Act, Publications Office of 
the European Union, 2024, pp. 6-7, available at data.europa.eu. Where businesses share or license data, they 
exercise  control  over  the  data  through  a  variety  of  intellectual  property  rights  (in  particular,  copyright), 
sui generis  rights  (in  particular,  the  database  sui  generis  right)  and  a  mix  of  other  types  of  rights  or 
contractual provisions; see the Expert Report on Data Licensing, pp. 19 et seq. and p. 24. 

63    See  Picht,  P.G.,  Caught  in  the  Acts:  Framing  Mandatory  Data  Access  Transactions  under  the  Data  Act, 
further  EU  Digital  Regulation  Acts,  and  Competition  Law,  Max  Planck  Institute  for  Innovation  and 
Competition Research Paper No. 22-12, 2022, p. 12, available at ssrn.com (explaining that in relation to the 

14 

 
 
 
In the evaluation, businesses explained that they do not know whether the TTBER can apply 
to  data  licensing  agreements64.  In  particular,  they  are  unsure  whether  the  data  that  they  are 
licensing can qualify as one of the technology rights (including know-how) that are already 
covered by the TTBER65.  Furthermore, stakeholders  criticised the fact  that the TTBER and 
Guidelines do not provide specific guidance on the licensing of data or datasets66. 

Problem  3  –  Businesses  do  not  know  how  to  apply  Article  101  TFEU  to  licensing 
negotiation groups 

The evaluation found that the relevance of the TTBER and Guidelines may be affected by the 
emergence of licensing negotiation groups (“LNGs”), for which there is currently no antitrust 
guidance67. LNGs are arrangements between technology implementers to negotiate jointly the 
terms of the technology licences that they wish to obtain from technology owners68. 

Implementers  consider  that  LNGs  are  capable  of  reducing  licensing  transaction  costs  by 
replacing  multiple  bilateral  negotiations  with  a  single  multilateral  negotiation69.  They  also 
consider  that  LNGs  allow  implementers  to  pool  their  legal  and  technical  expertise  and 
resources,  thereby  promoting  more  informed  and  balanced  negotiations70.  By  contrast, 
technology owners consider that implementers may use LNGs to exert buyer power and drive 
royalty rates below competitive levels, for example by engaging in coordinated hold-outs71.  

Although DG Competition has been informed about plans to set up LNGs in several sectors, 
it is not yet aware of any LNG operating on the market. Consequently, the actual impact of 
LNGs on technology licensing is not yet known and is debated in the academic literature72. 

competition law assessment there is  “an even greater lack of ready to use-solutions for the data licensing 
context”). 

64   See the Evaluation Support Study, pp. 44 and 65.   
65   See the Evaluation Support Study, pp. 65-66, which discusses how various forms of data transfer fall within 
the scope of the TTBER and the Guidelines. See also, for example, the response of a business association to 
the  evaluation  public  consultation  questionnaire,  which  stated  “Under  the  current  TTBER  is  doubtful  that 
raw data are included in the definition of know how adopted by the TTBER”. 

66   See the Evaluation Report, p. 42. See also Evaluation Support Study, p. 90. 
67   See the Evaluation Report, p. 42.  
68   In  the  public  consultation  on  the  draft  revised  texts,  some  stakeholders  (businesses  that  implement 
technology)  specified  that  LNGs  provide  one  additional  means  for  technology  licensors  and  licensees  to 
negotiate licensing terms, i.e. they are not intended to completely replace bilateral negotiations or licensing 
through pools or licensing platforms.   

69   Technology  pools  allow  a  similar  reduction  in  transaction  costs:  implementers  who  take  a  licence  from  a 
pool gain access to the rights of multiple technology owners, without the need to negotiate with each of them 
individually. 

70   See Group of Experts on Licensing and Valuation of Standard Essential Patents, Contribution to the Debate 

on SEPs, 2021, pp. 168 et seq., available at: https://ec.europa.eu/docsroom/documents/45217. . 

71  Hold-out  means  a  refusal  or  unreasonable  delay  by  a  technology  implementer  to  take  a  licence  of  the 

technology. 

2021, 

72   See  Barnett, J.M., The economic case against  Licensing Negotiation Groups in the Internet of Things, 4iP 
Council, 
https://www.4ipcouncil.com/research/economic-case-against-licensing-
negotiation-groups-internet-things,  which  states:  “In  the  short  term,  LNGs  would  simply  redistribute 
economic value from innovators to implementers in the technology supply chain without necessarily passing 
on  cost  savings  to  consumers.  In  the  medium  to  longer  term,  LNGs  would  pose  a  risk  to  the  standard-

available 

at 

15 

 
 
 
Based  on  DG Competition’s  contacts  with  stakeholders  and  the  evidence  gathered  in  the 
evaluation  and  impact  assessment,  it  appears  that  there  is  uncertainty  among  stakeholders 
regarding  the  application  of  Article 101 TFEU  to  LNGs  and  indeed  about  whether  it  is 
possible to set up and operate LNGs in compliance with competition law. It also appears that 
this uncertainty has led to a reluctance by implementers to set up LNGs, for fear of infringing 
competition law and incurring sanctions73. 

This uncertainty is illustrated by the recent request for informal guidance made by a group of 
car manufacturers wishing to set up an LNG to negotiate the terms of SEPs licences for cars 
(the  Automotive  LNG  or  “ALNG”)74.  The  fact  that  the  Commission  decided  to  issue  an 
informal  guidance  letter  in  that  case75  (only  two  such  letters  have  been  issued  since  this 
power  was  introduced  in  2003)  confirms  that  LNGs  raise  novel  competition  law  issues. 
Although  the  ALNG  guidance  letter  has  been  published,  the  letter  makes  clear  that  the 
guidance  is  limited  to  the  facts  of  that  case76.  It  therefore  cannot  be  relied  upon  by  other 
businesses for the assessment of other LNGs. Indeed, DG Competition has been approached 
informally  by implementers in  other sectors wishing to  explore the possibility  of setting  up 
LNGs. 

shares  competence 

the  Union.  The  Commission 

The  problem  of  legal  uncertainty  is  exacerbated  by  the  risk  of  diverging  regulatory 
approaches  within 
to  apply 
Article 101 TFEU with the national competition authorities (“NCAs”). Given that LNGs may 
involve collective negotiations between implementers and technology owners located in more 
than one Member State, NCAs may reach differing conclusions regarding their legality. The 
absence of Commission guidance on the competition law assessment of LNGs increases this 
risk77.  Concretely,  where  an  LNG  consists  of  technology  implementers  based  in  multiple 
Member  States  and/or  seeks  to  engage  with  technology  owners  based  in  multiple  Member 
States,  and  the  NCA  of  one  or  more  of  those  Member  States  finds  that  the  LNG  infringes 
Article 101, this is likely to lead to the termination of the LNG throughout the Union. 

As regards the scale of the problem, DG Competition has so far been informed about plans to 
set  up  LNGs  in  three  sectors,  involving  1-10  undertakings  in  each  case.  Evidence  gathered 
during the evaluation and impact assessment indicates that implementers consider that LNGs 

development and licensing-based monetization strategies that have supported the wireless communications 
industry’s iterative model of technology development.” 

73   This was confirmed by the replies to the impact assessment public consultation questionnaire. When asked 
whether the guidance on joint purchasing agreements in Chapter 4 of the Horizontal Guidelines provides an 
appropriate analytical framework for assessing LNGs, the majority of respondents answered in the negative.  
74   Pursuant to the Informal Guidance Notice, the Commission may provide informal guidance to businesses in 
cases  which  present  novel  or  unresolved  questions  for  the  application  of  Articles  101  or  102 TFEU;  see 
Commission Notice on informal guidance relating to novel or unresolved questions concerning Articles 101 
and 102  of  the  Treaty  on  the  Functioning  of  the  European  Union  that  arise  in  individual  cases  (guidance 
letters), OJ C 381, 4.10.22, pp. 9-13. 

75   See the Commission press release of 9 July 2025 on the issuance of an informal guidance letter relating to  
Group: 
Automotive 

Negotiation 

creation 

the 
https://ec.europa.eu/commission/presscorner/detail/mt/ip_25_1768.  
of 

informal 
https://ec.europa.eu/competition/antitrust/cases1/202536/AT_40979_104.pdf. 

paragraph 32 

Licensing 

ALNG 

the 

the 

of 

76   See 

guidance 

letter: 

77   NCAs  and  national  courts  are  not  legally  bound  by  Commission  guidelines  for  the  application  of 
Article 101 TFEU, however they typically take such guidelines into account in their enforcement practice. 

16 

 
 
may be useful, in particular, for the negotiation of licences of standard-essential technology 
and pooled technology rights. Pools and technology licensing platforms now offer technology 
packages  targeted  at  several  sectors,  including  automotive,  logistics,  healthcare,  domestic 
appliances and consumer electronics78. It therefore appears that LNGs may be of interest for 
implementers in a range of economic sectors.     

2.2.  Other areas of the rules that are not the subject of policy options 

In  addition  to  the  three  problems  set  out  in  Section  2.1  above,  the  evaluation  found  that 
market  and  other  developments  since  the  adoption  of  the  TTBER  and  Guidelines  raise 
questions  about  the  effectiveness  and  relevance  of  the  rules  in  three  other  areas,  namely: 
(i) the  soft  safe  harbour  in  the  guidance  on  technology  pools;  (ii)  the  guidance  on  patent 
dispute  settlement  agreements,  and  (iii)  the  coherence  of  certain  provisions  of  the  TTBER 
with equivalent provisions in other recently revised block exemption regulations79. 

The proposed changes to these areas of the rules consist mainly of technical amendments80 or 
clarifications  that  do  not  allow  for  the  formulation  of  meaningful  policy  options.  For 
example,  regarding  the  soft  safe  harbour  for  technology  pools,  the  evaluation  and  impact 
assessment confirmed the continued relevance of the soft safe harbour, but indicated that the 
effectiveness  of some of  its  conditions  could  be improved. The proposed changes  therefore 
further  specify  some  of  these  conditions.  As  these  changes  are  not  the  subject  of  policy 
options, they are not discussed further in this report. 

2.3.  What are the consequences of the problems and who is affected? 

The  problems  described  above  primarily  affect  businesses  that  use  the  TTBER  and 
Guidelines  to  assess  the  compatibility  of  their  technology  transfer  agreements  with  the 
EU competition rules.  

To the extent that, in the areas identified above, the rules do not function well or as well as 
they  could,  they  do  not  fully  meet  their  objectives81,  leading,  in  particular,  to  a  lack  of 
effectiveness and efficiency82.  

78   See, for example, the websites of Avanci (https://www.avanci.com/) and Sisvel (https://www.sisvel.com). 
79   See Section 5.1 of the Evaluation Report (Conclusions). 
80   In  particular,  the  evaluation  found  that  the  TTBER  and  Guidelines  do  not  reflect  recent  case  law  and 
decisional  practice  in  relation  to:  (i)  the  concept  of  potential  competitor;  (ii)  patent  litigation  settlement 
agreements, in particular pay-for-delay agreements, and (iii) the approach towards (non-software) copyright 
licences.  The  evaluation  also  found  that,  unlike  the  recently  revised  block  exemption  regulations  for 
horizontal  agreements  and  vertical  agreements,  the  TTBER  does  not  contain  definitions  of  ‘active’  and 
‘passive’  sales,  which  are  concepts  that  are  relevant  for  the  application  of  the  TTBER’s  list  of  hardcore 
restrictions. 

81   In particular, the objective of providing businesses with simpler, clearer and up-to-date rules and guidance 
that can help them to assess the compliance of their technology-related agreements with Article 101 TFEU. 
The objectives of the TTBER and Guidelines are explained in more detail in Section 2.1.3 of the Evaluation 
Report and in Section 4 below. 

82   See,  for  example,  the  Evaluation  Report,  pp.  28-31  and  35-36;  see  also  pages  84-86  of  the  Evaluation 
Support  Study,  which  state  that  the  practical  difficulties  encountered  in  relation  to  the  TTBER’s  market 
share thresholds affect the TTBER’s relevance and effectiveness (the latter in the sense of encouraging pro-
competitive licensing). 

17 

 
 
In  the  evaluation  and  impact  assessment83,  stakeholders  stated  that  legal  certainty  is  an 
important  factor  that  leads  to  lower  compliance  costs  and  influences  their  commercial 
strategy.  

Compliance costs for businesses consist mainly of internal resources and the cost of external 
advisers  –  notably  lawyers  and  economists  –  employed  to  ensure  that  technology-related 
agreements comply with Article 101 TFEU. Stakeholders emphasised that these costs would 
increase in the absence of the TTBER and Guidelines, as the legal certainty provided by these 
instruments  would  decrease  or  disappear.  They  also  indicated  that  the  low  level  of  legal 
certainty in the areas where the rules were considered to be not functioning well is primarily 
caused  by  the  complexity  of  certain  provisions,  and  the  fact  that  the  rules  do  not  currently 
provide guidance in relation to certain emerging market practices84.  

However, it proved particularly difficult to obtain quantitative evidence on compliance costs, 
even when using targeted stakeholder surveys85. Although stakeholder participation in these 
surveys  was  limited,  stakeholders  did  provide  some  indications  of  the  magnitude  of  these 
costs86. Based on this feedback, it is estimated that: (i) assessing compliance with the TTBER 
typically  requires  between  0.25  to  6  full  days  per  agreement87,  giving  an  average  of 
3.125 days;  and  that  (ii)  coverage  of  an  agreement  by  the  TTBER  and  Guidelines  reduces 
businesses’  compliance  costs  significantly  –  by  an  average  of  33%  –  compared  with  a 
situation  in  which  the  assessment  has  to  be  performed  solely  on  the  basis  of  Article  101 
TFEU  and  the  case  law88.  The  present  impact  assessment  therefore  relies  primarily  on 
qualitative  evidence,  in  particular  the  qualitative  feedback  of  stakeholders  on  the  proposed 
policy  options,  as  well  as  the  Commission’s  enforcement  experience  and  the  legal  and 
economic literature on technology licensing. Quantitative evidence has been provided where 
available.  

83   See,  for  example,  pages  27  and  35-36  of  the  Evaluation  Report  and  page  309  of  the  Evaluation  Support 

Study. 

84  See, for example, Evaluation Report pp. 28-29, 40-42.  
85   The  evaluation  showed  that  these  costs  are  challenging  for  stakeholders  to  quantify,  for  instance  because 
they  assess  the  compliance  of  their  activities  with  the  law  in  general,  without  distinguishing  between 
competition  law  and  other  applicable  legislation.  See  the  Evaluation  Support  Study,  pp.  91  and  110.  The 
evaluation  attempted  to  gather  data  through  stakeholder  interviews,  however  participation  was  relatively 
limited and the interviews yielded only very general information.  See the Evaluation Report, p. 36 and the 
Evaluation  Support  Study,  pp.  19–25.  To  attempt  to  overcome  these  challenges  in  the  impact  assessment, 
participants  in  the  reality  check  workshop  were  asked  a  series  of  simple  questions  about  their  compliance 
assessment  costs.  Although  participation  in  this  survey  was  relatively  limited,  it  did  provide  some 
indications  of  the  magnitude of  these  costs;  see  Section  2.3  of  Annex  2.  Similar  quantification  challenges 
were  encountered  in  the  recent  revisions  of  the  block  exemption  regulations  and  guidelines  for  vertical 
agreements  and  horizontal  agreements;  see,  for  example,  the  Commission  Staff  Working  Document, 
Evaluation  of  the  Vertical  Block  Exemption  Regulation,  SWD(2020)  172  final,  p. 27,  available  at 
https://op.europa.eu/en/publication-detail/-/publication/04939c28-19f0-11eb-b57e-01aa75ed71a1/language-
en. 

86   See Section 2.3 of Annex 2. 
87   See the Evaluation Support Study, pp. 91, 225-227. This order of magnitude is consistent with the results of 
the survey conducted at the reality check workshop (see Section 2.3 of Annex 2). According to that survey, 
businesses spend on average 3.04 days per licensing agreement to assess compliance with competition law.  

88   See Section 2.3 of Annex 2. 

18 

 
 
Beyond  its  impact  on  compliance  assessment  costs,  a  low  level  of  legal  certainty  can  also 
influence firms’  commercial  strategy. Economic  literature shows that legal  uncertainty may 
lead  firms  to  delay  or  avoid  business  conduct  that  is  pro-competitive89,  including  pro-
competitive  licensing  agreements.  This  is  confirmed  by  the  evaluations  of  other  block 
exemption regulations, such as the Vertical Block Exemption Regulation, where some SMEs 
reported that uncertainty regarding the assessment of their agreements discouraged them from 
pursuing these agreements altogether90. Clearer and more predictable competition rules can, 
conversely,  encourage  contracting,  by  enabling  businesses  to  better  assess  their  compliance 
with Article 101 TFEU. In addition, increased legal certainty may deter forms of cooperation 
that are more likely to be incompatible with competition law91. 

As the TTBER and the Guidelines are also used by SMEs92, SMEs are also affected by the 
low level of legal certainty mentioned above. Although there was limited direct participation 
from SMEs in the evaluation and impact assessment (see Annex 6), other evidence suggests 
that  greater  legal  certainty  would  also  be  helpful  for  SMEs.  For  instance,  the  Evaluation 
Support Study notes that, for SMEs, the cost of obtaining specialised legal advice may be too 
high, making simple compliance assessment tools particularly useful for them93.  

The  difficulty  of  determining  whether  technology  transfer  agreements  meet  the  TTBER’s 
market share thresholds for technology markets 

As  regards  the  TTBER’s  market  share  thresholds  for  technology  markets,  the  problem 
identified  above  leads  to  legal  uncertainty  and  increased  compliance  assessment  costs  for 
businesses,  particularly  where  technologies  are  at  an  early  stage  of  uptake.  This  affects 
businesses that wish to enter into technology licensing agreements.  

While  precise  quantification  of  the  number  of  affected  businesses  and  agreements  is 
challenging,  this  report  provides  indicative  estimates  based  on  extrapolation,  combining 
earlier economic research and a set of assumptions. The number of bilateral patent licensing 
agreements concerning EU patents likely to be concluded annually is estimated to lie between 
1,500  and  6,00094.  Although  this  estimate  considers  only  patent  licensing  agreements,  and 

89   See,  for  example,  Broulik,  J.,  ‘Predictability:  a  mistreated  virtue  of  competition  law’,  Journal  of  Antitrust 

Enforcement, 12, 2024, pp. 363. 

90   Commission  SWD,  Evaluation  of  the  Vertical  Block  Exemption  Regulation,  SWD(2020)  172  final,  p. 61, 
https://op.europa.eu/en/publication-detail/-/publication/04939c28-19f0-11eb-b57e-

available 
01aa75ed71a1/language-en. 

at 

91   See,  for  example,  Broulik,  J.,  ‘Predictability:  a  mistreated  virtue  of  competition  law’,  pp.  364  et  seq., 

mentioned at footnote 89. 

92   See, for example, the Evaluation Support Study, pp. 28, 192. 
93   See the Evaluation Support Study, p. 29. 
94   This  extrapolation  is  based  on  the  following  assumptions  and  data:  1.  The  empirical  surveys  by 
Gambardella,  A.,  et  al.,  and  by  Torrisi,  S.,  et  al.,  (see  footnotes  11  and  12  of  this  Report)  suggest  that 
between 6% and 11% of EPO patents are licensed; 2. EPO data indicate that approximately 110,000 patents 
were  granted  in  2024  (see  EPO,  Patent  Index  2024.  Statistics  at  a  glance,  March  2025,  p.  8,  available  at 
epo.org); 3). Empirical literature shows that licensing agreements often bundle multiple patents, with some 
agreements covering dozens of patents, and that patents may be licensed to more than one licensee. As data 
on the average number of patents per licensing agreement and the average number of licensees per patent are 
not available, the extrapolation relies on two assumptions: each licensing agreement contains between 2 and 
4 patents, and each patent is licensed to 1 licensee. These assumptions are intended to reflect predominantly 
bilateral  licensing  and  to  exclude  patent  pool  and  other  multilateral  licensing  schemes  (which  do  not  fall 

19 

 
 
 
may  therefore  be  conservative95,  it  can  serve  as  a  proxy  for  the  number  of  agreements  that 
potentially  fall  within  the  scope  of  the  TTBER  and  that  are  affected  by  the  identified 
problem.  These  figures  should  however  be  treated  with  caution,  providing  only  a  general 
indication of the population affected by the identified problem96. 

The main consequences of the problem can be summarised as follows. First, businesses that 
enter  into  licensing  agreements  must  engage  in  market  definition  and  market  share 
calculations, which can be more complex when technologies are at an early stage of uptake. 
Building  on  data  provided  by  stakeholders,  the  compliance  assessment  costs  required  for 
applying  the  TTBER’s  market  share  thresholds  are  estimated  at  approximately  EUR 787.5 
per licensing agreement97. Applying this figure to the estimated population of the population 
of  affected  agreements  gives  total  compliance  assessment  costs  of  around  EUR 1,181,250–
4,725,000 per year. Given the challenges of obtaining precise quantitative data, these figures 
should be treated with caution, providing only a general indication of the main costs incurred 
by businesses.  

Secondly,  as  shown  by  the  results  of  the  impact  assessment  public  consultation98,  some 
businesses  enter  into  technology  transfer  agreements  without  certainty  regarding  their 
compliance with  Article 101 TFEU, or carry out  an individual assessment  of the agreement 
under  Article  101,  which  is  more  complex  and  burdensome  than  assessing  whether  the 
agreement meets the conditions of the TTBER.  

within the scope of the TTBER). Based on these assumptions, the range of estimated licensing agreements is 
calculated as follows: Lower bound: (number of EPO patents granted in 2024 × 6 %) ÷ 4 × 1; Upper bound: 
(number of EPO patents granted in 2024 × 11 %) ÷ 2 × 1.  

95   This figure does not capture the licensing of technology rights other than patents (for example, know-how). 
It  should  be  interpreted  with  caution  for  additional  reasons.  First,  it  may  overestimate  the  number  of 
agreements  potentially  falling  within  the  scope  of  the  TTBER,  as  it  may  include  licensing  agreements  for 
purposes  other  than  the  production  of  contract  products,  as  well  as  licensing  agreements  entered  into  by 
undertakings which, due to their market shares, would clearly fall outside the scope of the TTBER. Second, 
the number of licensing agreement concerning EPO patents does not precisely correspond to the number of 
licensing  agreements  falling  within  the  scope  of  Article  101  TFEU.  For  example,  even  an  agreement 
concerning a patent registered exclusively in the patent office of a single Member State can fall within the 
scope  of  Article  101.  However,  the  existence  of  an  EPO  patent  can  be  used  as  a  proxy  for  licensing 
agreements that may have effects on EU markets and, for the purpose of our extrapolation, is therefore used 
to estimate the number of licensing agreements potentially falling within the scope of the TTBER.  

96   For instance, the two empirical surveys on which the extrapolation is based (i.e. those by Gambardella, A., et 
al., and by Torrisi, S., et al.) concern datasets or agreements from more than ten years ago and therefore do 
not capture potential changes in the technology licensing market since then, such as a possible increase in 
sectoral vertical integration.  

97   As  mentioned  at  the  beginning  of  this  Section,  stakeholders  indicated  that  assessing  compliance  with  the 
TTBER typically requires between 0.25 to 6 full days per agreement, resulting in an average of 3.125 days. 
The  replies  to  the  survey  conducted  at  the  reality  check  workshop  showed  that  stakeholders  spend,  on 
average, around 21% of their total compliance assessment costs on the assessment required for applying the 
TTBER’s market share thresholds. See Section 2.3 of Annex 2. As the evaluation showed that businesses use 
both internal and external resources to assess whether their agreements meet the conditions of the TTBER, 
this  report  uses  the  lower  bound  of  hourly  fees  for  lawyer  services  (i.e.  EUR  150)  to  estimate  the  costs 
associated with an average of 3.125 working days per agreement. This value is consistent with that used in 
other Commission impact assessment reports. On that basis, the total cost of assessing compliance with the 
TTBER is estimated at approximately EUR 3,750 per licensing agreement. The cost of applying the market 
share thresholds is therefore estimated at approximately EUR 787.5 per licensing agreement.  

98   For more detail, see Section 2.1 of Annex 2. 

20 

 
 
While it is possible that, faced with such difficulties, businesses may prefer to err on the side 
of  caution  and  refrain  from  entering  into  technology  transfer  agreements,  the  magnitude  of 
that  risk  appears  to  be  limited.  The  majority  of  the  respondents  to  the  impact  assessment 
public consultation stated that they still entered into technology transfer agreements despite 
encountering  practical  difficulties in  calculating market  shares99. This  is  consistent with  the 
survey  conducted  for  the  impact  assessment  of  the  previous  version  of  the  TTBER,  which 
indicated  that  legal  and  regulatory  barriers  limit  technology  licensing  only  to  a  limited 
extent100. 

The lack of guidance for assessing the compliance of data licensing agreements 

The  lack  of  guidance  in  the  TTBER  and  Guidelines  on  data  licensing  agreements  creates 
legal uncertainty for companies that wish to enter into such agreements, which has both direct 
and indirect negative consequences. 

First, the direct consequence for businesses is higher costs to assess the compliance of their 
data  licensing  agreements  with  Article  101  TFEU101.  Indeed,  the  lack  of  guidance  in  the 
TTBER and Guidelines does not remove the general obligation of businesses to comply with 
Article 101. Instead, as mentioned in Section 1.3 above and earlier in this Section, businesses 
have  to  carry  out  a  more  complex  individual  assessment  of  their  data  licensing  agreements 
using the Commission’s general guidelines on the application of Article 101 and the case law. 
The  complexity  of  this  assessment  is  compounded  by  the  fact  that  data  licensing  is  still  a 
fairly recent practice and therefore there is very limited  jurisprudence or decisional practice 
by competition authorities on this type of agreement. 

On the basis of the available data, it has not been possible to measure precisely the number of 
data  licensing  agreements  that  are  affected  by  this  lack  of  guidance.  It  has  therefore  been 
necessary  to  rely  on  estimates  and  approximation102.  On  this  basis,  the  number  of  bilateral 
data licensing agreements for production purposes entered into every year in the Union  can 
be estimated to be of the order of a few thousand, in particular between 1,000 and 10,000. 

99   For more detail, see Section 2.1 of Annex 2.  
100  See the impact assessment report on the previous revision of the TTBER, pp. 8-9 and the PATLICE Survey - 
Survey on patent licensing activities by patenting firms, Publications Office of the European Union, 2013. 
101  This was, for example, reported by a stakeholder in response to the impact assessment public questionnaire. 
102  Data licensing agreements are private agreements between undertakings that are not generally published or 
reported.  Consequently,  it  has  not  been  possible  to  obtain  reliable  estimates  of  the  numbers  of  such 
agreements.  For  example,  some  sources  report  fewer  than  200  known  data  licensing  agreements  (see 
https://www.neudata.co/blog/ai-data-licensing-market-analysis).  However,  this  number  likely  represents  a 
small fraction of the total population of data licensing agreements. To arrive at a more realistic estimate, it is 
therefore  useful  to  analyse  more  general  data  about  the  players  active  in  the  data  market.  The  type  of 
companies  operating  in  this  market  are  the  data  supplier  companies,  namely  companies  that  have  as  their 
main  activity  the  production  and  delivery  of  digital  data-related  products,  services,  and  technologies.  In 
2024, there were an estimated 266,173 data supplier companies in the Union and this number was expected 
to grow to 280,173 in 2025. See La Croce, C. et al., First Report on Facts and Figures, The European Data 
Market  Study  2024-2026,  CNECT/LUX/2023/OP/0043  (2025),  p.  77,  available  at  https://digital-
strategy.ec.europa.eu/en/library/european-data-market-study-2024-2026.  However,  it  is  likely  that  only  a 
fraction  of  these  companies  will  license  data  through  bilateral  licences  entered  into  for  the  purpose  of 
production (i.e. that could possibly benefit from the TTBER safe harbour).   

21 

 
 
As  explained  above  at  the  beginning  of  this  Section,  stakeholders  confirmed  that  the 
competition  law  assessment  of  agreements  is  significantly  more  costly  where  only  general 
principles  and  case  law  can  be  used,  compared  to  a  situation  where  the  TTBER  and 
Guidelines  provide  guidance.  In  particular,  the  costs  of  assessing  the  compliance  of  an 
agreement103 without the TTBER and Guidelines can be estimated at 4.66 full-time104 days or 
EUR 5,600105. Applying this figure to the estimated population of affected agreements gives 
a total compliance assessment cost in the range of EUR 5,600,000–56,000,000 per year.  

Second,  the  lack  of  guidance  on  data  licensing  agreements  may  have  indirect  negative 
consequences,  as  already  explained  in  the  introduction  to  this  Section.  In  particular,  some 
businesses  may  decide  to  enter  into  data  licensing  agreements  without  doing  a  compliance 
assessment.  This  may  create  an  increased  risk  of  anti-competitive  agreements.  Conversely, 
the  lack  of  guidance  may  make  some  businesses  reluctant  to  enter  into  data  licensing 
agreements. While it has not been possible to isolate the effect of the lack of guidance from 
the  effect  of  other  economic  and  regulatory  considerations,  it  is  possible  that  the  lack  of 
guidance may contribute to the problem of scarcity and under-use of data highlighted by the 
Commission’s Data Union Strategy106. 

The lack of guidance for assessing the compliance of licensing negotiation groups 

The direct consequence of the legal uncertainty resulting from the absence of guidance on the 
competition law assessment of LNGs is that businesses wishing to set up LNGs face higher 
compliance  assessment  costs.  In  particular,  they  are  obliged  to  assess  the  compatibility  of 
LNGs  with  Article  101 TFEU  using  only  the  Commission’s  general  guidelines  on  the 
application of Article 101, the case law and the Commission’s decisional practice107. As set 
out above, a majority of the stakeholders surveyed at the reality check workshop considered 
that  the  coverage  of  an  agreement  by  the  TTBER  and  Guidelines  reduces  their  compliance 
costs significantly. These negative consequences also affect SMEs108.  

103 While the data on number of full-time days per agreement used for the purpose of this calculation  relate to 

technology transfer agreements, it has been used by analogy for data licensing agreements. 

104 Based on the evaluation and other data collection activities, we know that (i) assessing the compliance of an 
agreement with the TTBER takes on average 3.125 full-time days; (ii) the ability to use the TTBER and the 
Guidelines  to  assess  the  compliance  of  an  agreement  with  Article  101 TFEU  reduces  those  compliance 
assessment costs by an average of 33%. Consequently, the costs of assessing the compliance of an agreement 
without the TTBER and Guidelines can be estimated at 4.66 full-time days.  

105 The cost per agreement has been calculated by multiplying the number of 4.66 full-time days by an average 
cost  per  hour  of  EUR  150  (the  lower  bound  of  hourly  fees  for  lawyer  services;  see  footnote 97  for  more 
details). 

106  Available at: https://digital-strategy.ec.europa.eu/en/library/data-union-strategy-unlocking-data-ai. 
107  There is currently no case law of the Union Courts or Commission decisions on LNGs. Businesses may refer 
to  the  assessment  contained  in  the  informal  guidance  letter  issued  by  the  Commission  in  relation  to  the 
ALNG, however the guidance in that letter is expressly limited to the specific facts and market context of the 
ALNG itself.  

108  According to the Commission’s Impact Assessment Report accompanying the Proposal for a Regulation on 
standard essential patents, there were around 3,800 potential SEP implementers in the EU in 2022, of which 
84%  were  SMEs.  Approximately  230  EU-based  firms  conclude  new  SEP  licence  agreements  per  year, 
including approximately 80 SMEs; see Commission Staff Working Document SWD/2023/124 final, pp. 78-
79, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52023SC0124. 

22 

 
 
The  legal  uncertainty  may  also  have  indirect  negative  consequences  for  competition.  First, 
businesses  may  establish  or  operate  LNGs  in  a  manner  that  restricts  competition,  for 
example,  they  may  use  the  LNG  as  a  vehicle  to  collude  in  downstream  product  markets. 
Second,  the  legal  uncertainty  may  deter  businesses  from  establishing  or  participating  in 
LNGs. As a consequence, those businesses will not benefit from the potential pro-competitive 
effects of LNGs, in particular reductions in licensing transaction costs and more informed and 
balanced licensing negotiations109.  

2.4.  What are the problem drivers? 

The dynamics of technological uptake and early licensing 

Regarding  the  market  share  thresholds  for  technology  markets,  the  main  drivers  of  the 
problem relate to the dynamics of technological uptake110.  Although these dynamics are not 
entirely  new,  some  recent  trends  may  have  increased  the  significance,  or  the  perceived 
significance, of the challenges they pose for the assessment of market power, for instance, in 
the case of early-stage licensing, i.e. when the licensed technology has not yet generated any 
product sales or is still at early stage of commercialisation111.  

Economic research indicates that there is often a significant time lag between the date of the 
licensing agreement and the date at which the technology begins to generate meaningful sales 
in  downstream  product  markets112.  While  methodologies  exist  to  identify  competing 
technologies and their competitive position at an early stage113, these rely on more complex 
assessments  and  data  collection  compared  to  situations  where  the  technology  has  already 
generated significant sales. In the latter case, businesses use sales data and the actual price of 
competing products to calculate market shares.  

Moreover, the rate of adoption and the commercial success of a technology may be subject to 
significant  uncertainty  and  volatility114,  particularly  when  the  technology  is  still  at  an  early 

109  See Section 2.1 (Problem 3) above. 
110  See, for example, the Evaluation Support Study, pp. 85-88 and 285-286.   
111  The  evaluation  and  the  literature  indicate  that  early  licensing  is  common  in  some  industrial  sectors  and 
among certain actors, such as public research organisations. See, for example, the Evaluation Support Study, 
pp.  85,  90  and  203  (which  mention  the  agricultural  and  pharmaceutical  sectors);  Song,  S.  and  Lee,  J., 
‘Licensing early-versus late-stage technologies: The licensee perspective’, Technology in Society 72 (2023) 
102199, p. 5;  Spiegel, Y., Licensing interim R&D knowledge, CSIO Working Paper no. 88, Northwestern 
University,  2007,  p.  2,  available  at  https://sites.northwestern.edu/csiobackup/category/working-papers/; 
Elfenbein,  D.W.,  ‘Publications,  patents  and  the  market  for  university  inventions’,  Journal  of  Economic, 
Behaviour  and  Organization,  63,  2007,  pp.  692-693  (concerning  early  licensing  of  university-generated 
inventions).  As  noted  in  the  Introduction,  there  is  little  statistical  data  on  the  number  of  licensing 
agreements, and obtaining reliable quantitative data on early licensing has proved to be equally challenging.  
112  See, for example, Reinganum, J.F.,  ‘The Timing of Innovation: Research, Development and Diffusion’, in 
Schmalensee,  R.  and  Willig,  R.D.,  Handbook  of  Industrial  Organization,  Volume  I,  Elsevier  Science 
Publishers B.V., 1989, pp. 893 et seq., emphasising that the timing of the adoption of a technology depends 
on several factors and may vary significantly across firms and industries. 

113  For  an  overview  of  the  concepts  and  methodologies  used  to  define  markets  in  which  innovation  plays  a 
significant  role,  see,  for  example,  Hausemer,  P.  et  al.,  Support  study  accompanying  the  evaluation  of  the 
Commission  Notice  on  the  definition  of  relevant  market  for  the  purposes  of  Community  competition  law, 
Final Report, Publications Office of the European Union, 2021. 

114  For instance, in a highly dynamic market with limited barriers to entry, a substitutable technology may be 

developed by another company and compete with the licensed technology.  

23 

 
 
stage of adoption. For instance, technologies at this stage may experience fluctuating market 
shares  –  including  temporary  spikes  in  demand  –  that  are  not  necessarily  representative  of 
their market power, particularly in fast-growing sectors115. An early and temporary surge in 
demand may cause a company to exceed the TTBER market share thresholds even though the 
parties do not actually possess meaningful market power.  

However,  such  volatility  is  far  from  universal.  The  evidence  shows,  for  instance,  that 
significant market shares can stabilise over time, which increases the risk of anti-competitive 
effects116.  Commission  merger  practice  indicates  that  in  some  licensing  markets,  market 
shares  have  remained  consistently  high  over  several  years,  raising  competition  concerns117. 
Such  high  market  shares  amplify,  for  instance,  both  the  ability  of  firms  to  engage  in 
restrictive practices, and the likely share of the market affected, thereby significantly raising 
the risk of harm to  competition118. This  is  broadly consistent  with  the Commission’s report 
“Protecting  Competition  in  a  Changing  World”,  which  highlights  that  concentration  levels 
and market shares in several sectors have significantly increased; the intensity of competition 
and  business  dynamism  has  decreased;  productivity  growth  has  slowed,  and  productivity 
dispersion has increased119.   

The increase in the number of data licensing agreements  

For  data  licensing,  the  main  driver  of  the  problem  is  the  increase  in  the  number  of  data 
licensing agreements in the market in recent years.  

115  See, for example, judgment of 11 December 2013, Cisco Systems and Messagenet v Commission, T-79/12, 

EU:T:2013:635, paragraph 69. 

116  The literature also highlights the risks arising from high levels of concentration in technology markets (see, 
for example, Gambardella A., Giuri P., and Luzzi A., ‘The market for patents in Europe’,  Research Policy, 
36, 8, 2007, pp. 1168). 

117  In  its  merger  practice,  the  Commission  has  highlighted  that  certain  licensing  markets  within  the 
agrochemical  industry,  particularly  seed  and  trait  licensing  markets,  are  characterised  by  stable  and  high 
market shares, and that further concentration of these shares could have detrimental effects on competition. 
For  example,  in  M.5675  –  Syngenta/Monsanto’s  Sunflower  Seed  Business  (Commission  Decision  of  17 
November 2010, paragraphs 152 et seq.), the Commission noted the consolidation trend among licensors of 
sunflower varieties and the competition risks arising from further concentration. In that case, the combined 
market share of the (competing) merging parties would have been between 25% and 45% (paragraph 155). 
This concentration heightened the risk of negative effects on downstream markets, due, for example, to the 
parties’  larger  market  share  and  their  greater  ability  to  raise  royalties  or  impose  restrictive  conditions.  A 
subsequent  decision  in  the  same  industry (M.8084  – Bayer/Monsanto,  Commission  Decision  of  21  March 
2018)  also  noted  the  competitive  risks  stemming  from  the  combined  high  market  shares  of  the  merging 
parties in the licensing of cotton varieties. The concentration would have led to a combined market share of 
60-80  %  in  that  licensing  market  (paras.  771  et  seq.).  The  level  of  combined  market  shares  and  the 
associated  competitive  concerns  were  even  more  significant  for  certain  markets  for  the  licensing  of  broad 
acre  crop traits (see paras. 903 et seq.). However, other licensing markets are more competitive, and even 
temporarily  high  market  shares  do  not  automatically  create  significant  competitive  concerns.  See,  for 
instance,  the  Commission  Decision  of  2  June  2023,  in  M.10783  –  EQT  Future/AM  Fresh/SNFL/IFG, 
paragraphs 108 et seq., analysing market shares and their evolution in the breeding and licensing of protected 
seedless table grapes.  

118  See, for example, the Commission Decisions mentioned in the footnote above.  
119  See DG Competition, Protecting competition in a changing world. Evidence on the evolution of competition 

in the EU during the past 25 years, Publications Office of the European Union, 2024, pp.  4-10.  

24 

 
 
Data  licensing  has  become  more  common  in  the  market  since  the  TTBER  and  Guidelines 
entered into force in 2014, due to changes in the available technologies and in the economy 
itself120. Data licensing agreements now occur in a variety of contexts, including for example: 
(i) data licensed together with a main technology right, for example where such data takes the 
form of know-how121; (ii) data licensing embedded in broader contracts for the provision of 
digital  or  software-based  services,  for  example  where  data  access  or  usage  rights  are 
contractually integrated into broader service agreements; (iii) licensing of device-related data 
portfolio,  and  (iv)  data  licensing  for  AI  products,  including  for  the  purpose  of  training  AI 
models122.  

The  available  data  indicate  a  substantial  increase  in  the  licensing  of  data  in  recent  years,  a 
trend which is expected to continue:  

i.  The analysis of a sample of licensing agreements performed in the Evaluation Support 
Study found that there has been a large increase in the use of data-related clauses (for 
example, mentions of safety data in licensing agreements increased from 15% in the 
period 2012-2014 to 32% in the period post-2018)123. 

ii.  The number of datasets  available in  public repositories that are subject  to open data 
policies  has  increased  significantly.  For  example,  the  current  number  of  datasets 
available  on  data.europa.eu  is  around  1,750,000  with  significant  growth  in  the  last 
5 years: 

Screenshot from the website of data.europa.eu showing the evolution  
of the number of available datasets (taken on 01/03/2026) 

120  See the Evaluation Report, Section 3.2. 
121  According to the Expert Report on Data Licensing, paragraph 37, such know-how can, for example, concern 

best (manufacturing) practices for handling the licensed technology. 

122  Expert Report on Data Licensing, Section 4.01. 
123  See Evaluation Support Study, p. 31. 

25 

 
  
 
 
iii.  The  EU  data  monetisation  market  (i.e.  the  revenue  that  data  suppliers  earn  from 
selling data) is expected to grow from around EUR 29 billion in 2024 to around EUR 
46 billion  in  2030.  Moreover,  data  supplier  companies  operating  in  the  Union  are 
expected to grow from 266,173 in 2024 to around 330,000 by 2030124.  

iv. 

Public data on the AI sector shows that the relevance of data licensing in that sector is 
expected  to  grow  significantly.  For  example,  a  study  by  Grand  View  Research 
estimates that the global market for AI datasets & licensing for academic research and 
publishing  was  worth  USD  381.8  million  in  2024  and  projects  it  to  reach  USD 
1.59 billion by 2030125. 

While not  all the data licensing agreements covered by the above  statistics  will  be bilateral 
agreements  relating  to  the  production  of  goods  or  services  (as  is  the  case  for  the  licensing 
agreements  covered by the TTBER), those  statistics  indicate that data licensing agreements 
are more and more common. 

The  increased  importance  of  technology  standards  and  the  licensing  of  standard-essential 
technology via pools and platforms  

For  LNGs,  the  drivers  of  the  problem  are  the  market  developments  that  have  prompted 
technology implementers to consider setting up LNGs126.  

First, the digitalisation of the economy has increased the importance of technology standards, 
which  enable  product  inter-operability127.  A  notable  example  is  the  standards  for  mobile 
telecommunications128.  Whereas  these  standards  were  originally  developed  to  enable  inter-
operability for mobile telephones and networks, the development of the internet of things129 
means that these standards are now implemented by manufacturers and service providers in a 
variety of sectors130, including automotive, consumer electronics131 and industrial equipment. 

124 See  La Croce, C. et al.,  First Report on Facts and Figures,  The  European Data Market Study 2024-2026, 

CNECT/LUX/2023/OP/0043 (2025). 

125  These  figures  are  publicly  available  at  https://www.grandviewresearch.com/industry-analysis/ai-datasets-

licensing-academic-research-publishing-market-report (last visited on 01/03/2026).  

126  The Evaluation Support Study reported a lack of information on the number and size of LNGs operating in 
the  EEA  and  attributed  this  to  the  fact  that  LNGs  were  only  starting  to  emerge  and/or  do  not  operate 
officially as LNGs. 

127  See the Evaluation Report, Section 3.1 and the Evaluation Support Study, Section 3.2. 
128  See CRA, The global SEP landscape: Estimating royalty flows and out of Germany (2024), pp. 10 and 12, 
available  at  https://www.crai.com/insights-events/publications/the-global-sep-landscape-estimating-royalty-
flows-in-and-out-of-germany/,  which  notes  that  the  4G licences  granted  by  the  Avanci  platform’s 
4G licences covered more than 130 million connected vehicles in 2023 and that the SEP licensing revenue of 
the seven largest patent pools totalled EUR 1.3 billion in 2022, with the Avanci 4G vehicle pool contributing 
approximately EUR 488 million. 

129  The EU’s  Internet  of  Things  policy highlights  that  the  number  of  installed  connected  devices  is  set  to 
increase  from  roughly  40  billion  in  2023  to 49  billion  by  2026,  growing  at  an  annual  rate  of 7%.  See 
https://digital-strategy.ec.europa.eu/en/policies/internet-things-policy. 

130  See,  for  example,  the  IoT  licensing  programmes  offered  by  Sisvel  (https://www.sisvel.com/licensing-

programmes/iot/) and Avanci (https://www.avanci.com/). 

131  In  2024,  around  76  %  of  EU  internet  users  used  internet-connected  devices  or  systems,  illustrating 
widespread  digital  connectivity,  See  Eurostat,  Digitalisation  in  Europe  –  2025  edition,  available  at 
https://ec.europa.eu/eurostat/web/interactive-publications/digitalisation-2025. 

26 

 
 
As a result, the number and diversity of implementers that require access to technology rights 
(generally patents) that are essential to implement a standard has increased132. 

Second,  technology  standards  are  often  supported  by  technology  pools  and  licensing 
platforms,  which  assemble  a  package  of  technology  rights  (generally  patents)  that  are 
essential  to  implement  a  standard,  and  license  them  out  using  a  single  agreement. 
Manufacturers wishing to obtain a licence from such pools or platforms are often faced with 
take-it-or-leave  it  licensing  terms133.  In  that  context,  some  implementers  wish  to  be  able  to 
join  together  to  negotiate  the  terms  of  SEP134  licences  with  technology  owners,  technology 
pools and licensing platforms. 

2.5.  How likely is it that the problems will persist? 

The  obligation  for  businesses  to  self-assess  the  compliance  of  their  agreements  with 
Article 101 TFEU is not expected to change in the future. 

In the absence of an intervention to address the problems identified, it can be expected that 
the  TTBER  and  Guidelines  will  continue  to  not  fully  deliver  on  their  objectives,  and  the 
above-mentioned problems will either persist or become more pronounced.  

First,  the  complexity  associated  with  applying  the  TTBER’s  market  share  thresholds  for 
technology  markets  is  likely  to  remain.  Businesses  are  very  likely  to  continue  engaging  in 
technology licensing135, including at early stages of technology uptake.  Accordingly, it can 
be  expected  that  businesses  will  continue  to  find  it  difficult  to  determine  whether  their 
agreements fall within the TTBER’s market share thresholds.  

Second,  the  number  of  data  licensing  agreements  is  expected  to  grow  substantially  in  the 
coming years, especially in view of the expected increase in products that rely heavily on data 
for their creation or functioning, including AI-related products136. 

Third, in view of the continuing digitalisation of the economy, there is no indication that the 
importance of technology standards, the associated technology pools and licensing platforms 

132 Although standard-essential patents (“SEPs”) represent only a limited share of all patents in force, they are 
central  in  sectors  where  compliance  with  technical  standards  is  indispensable  for  market  access.  See  also 
page 33 of  the SEPs Expert Group Contribution to the  Debate on SEPs  (2021), pp. 195-196, which notes 
that the total stock of declared SEPs continues to increase and will likely continue to do so in the foreseeable 
future, because the number of new patents being registered is currently significantly larger than the number 
of patents expiring or lapsing. 

133  See the Evaluation Report, pp. 33-34.  
134  Businesses  that  contribute  technology  rights  to  a  technology  standard  generally  commit  to  the  standard-
setting  organisation  that  they  will  license  out  their  rights  on  Fair,  Reasonable  and  Non-discriminatory 
(“FRAND”) terms. However, what constitutes FRAND is often the subject of litigation between technology 
owners and implementers. See the Evaluation Support Study, Section 3.1. See also the judgment of the Court 
of  Justice  of  16 July  2015  in  case  C-170/13,  Huawei  v  ZTE,  ECLI:EU:C:2015:477  and  the  Horizontal 
Guidelines, paras. 460-462. 

135  See, for example, Nokia signs multi-year patent license agreement with Samsung, Reuters, 15 January 2025, 
available  at  www.reuters.com;  Olcott,  E.,  Western  companies  drive  Chinese  biotech  licensing  deal  blitz. 
Financial Times, 26 May 2024, available at www.ft.com.  

136  See,  for  example,  Posnett,  K.,  The  new  markets  for  AI  data,  Financial  Times,  19  May  2025,  available  at 

www.ft.com.  

27 

 
 
will diminish in the foreseeable future. It is therefore likely that implementers that use these 
standards will continue to wish to join together in LNGs to negotiate licensing terms. 

3.  WHY SHOULD THE EU ACT? 

3.1.  Legal basis 

Under  the  Enabling  Regulation,  the  Commission  is  empowered  to  adopt  block  exemption 
regulations for categories of technology transfer agreements that can be assumed to fulfil the 
conditions of Article 101(3) TFEU.  

3.2. 

Subsidiarity: added value of EU action 

Competition law is an area of policy in which the EU has exclusive competence, as set out in 
Article 3 TFEU. Furthermore, the Enabling Regulation grants only the Commission, and not 
the Member States, the power to adopt block exemption regulations for technology transfer 
agreements. Accordingly, the subsidiarity principle does not apply.  

In any event, there is an added value to EU action in this area. The TTBER also binds NCAs 
and national  courts.  Together with  the Guidelines137, it  promotes a harmonised approach to 
the  assessment  of  technology  transfer  agreements  across  the  Union,  reducing  the  scope  for 
diverging  interpretations  by  NCAs  and  national  courts,  and  thus  reducing  compliance  costs 
for businesses  that  operate  in  more than one Member State138. Moreover, these instruments 
provide  greater  legal  certainty  for  businesses  that  wish  to  enter  into  technology  transfer 
agreements  than  the  Commission’s  general  guidelines  and  notices  on  the  application  of 
Article 101 TFEU.  

4.  OBJECTIVES: WHAT IS TO BE ACHIEVED? 

4.1.  General objectives 

The initiative consists of a revised TTBER and revised Guidelines. The general objective of 
the  TTBER  and  the  Guidelines  is  to  ensure  the  effective  protection  of  competition,  in 
particular  by  exempting  only  those  technology  transfer  agreements  that  can  be  assumed  to 
meet the conditions of Article 101(3) TFEU, and by giving guidance on the competition law 
assessment of technology transfer and other technology-related agreements, to provide legal 
certainty for businesses. 

In  this  context,  ensuring  the  effective  protection  of  competition  means  ensuring  that 
technology  transfer  agreements  do  not  distort  competition  in  technology  licensing  markets 
and  in  the  downstream  markets  where  products  incorporating  those  technologies  are  sold. 
While  these  agreements  are  often  pro-competitive,  in  certain  cases  undertakings  may  use 
them to pursue anti-competitive objectives that ultimately harm consumers.  

137  The Guidelines do not bind NCAs or national courts. However, NCAs and courts typically take Commission 
guidelines  and  notices  on  the  application  of  Article 101 TFEU  into  account  when  they  assess  the 
compatibility of agreements with Article 101. 

138 This is confirmed by the stakeholder feedback in the evaluation: see page 39 of the Evaluation Report. 

28 

 
 
Restrictive  technology  transfer  agreements  may  reduce  inter-technology  competition,  for 
example where reciprocal obligations prevent either competitor from gaining a technological 
lead over the other, or  where  agreements increase transparency in  the market  in  a  way that 
facilitates  coordination  between  competitors.  They  may  also  foreclose  competitors,  for 
example where licensors impose non-compete obligations on licensees to such an extent that 
it becomes difficult for competing licensors to enter or expand, or where agreements restrict 
access  to  inputs,  thereby  creating  and/or  increasing  barriers  to  entry  or  expansion.  Certain 
restrictions may  also  reduce intra-technology  competition, for example from the imposition 
on licensees of resale price maintenance or territorial or customer sales restrictions. This can 
weaken  price  competition,  segment  markets  and  limit  choice  and  innovation  for  businesses 
and consumers. 

4.2. 

Specific objectives 

The  specific  objectives  of  the  initiative  reflect  the  problems  described  above  and  are  as 
follows. The first specific objective is to reduce the complexity for businesses of applying the 
TTBER’s market share thresholds for technology markets. The second specific objective is to 
facilitate the assessment of data licensing agreements by businesses under Article 101 TFEU, 
and the third specific objective  is  to  facilitate  the assessment of LNGs by businesses under 
Article 101 TFEU. 

The following table illustrates the relationship between the problem drivers, the problems and 
the objectives:  

Drivers 

Problems 

Specific 
objectives 

General 
objectives 

• Early licensing and 

dynamics of 
technological uptake. 

• Increase of the number 

of data licensing 
agreements in the 
market. 

• Increased importance 

of technology standards 
and the licensing of 
standard-essential 
technology via pools 
and platforms. 

• Businesses find 
it difficult to 
determine 
whether their 
technology 
licensing 
agreements 
meet the 
TTBER’s 
market share 
thresholds.  

• Businesses do 
not know how 
to apply Article 
101 TFEU to 
data licensing 
agreements and 
LNGs. 

• Reduce the 

complexity for 
businesses of 
applying the 
TTBER’s market 
share thresholds 
for technology 
markets.  
• Facilitate the 
assessment of 
data licensing 
agreements and 
LNGs by 
businesses under 
Article 101 
TFEU. 

• Ensure the effective 

protection of 
competition, 
through the correct 
application of 
Article 101(3) 
TFEU and the 
provision of 
appropriate 
guidance, while 
providing adequate 
legal certainty to 
businesses. 

29 

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5.  WHAT ARE THE AVAILABLE POLICY OPTIONS? 

5.1.  What is the baseline from which options are assessed? 

The framework for assessing technology transfer agreements under EU competition law is the 
TTBER and Guidelines that were adopted in 2014. For the reasons set out below, these rules 
are  the  relevant  baseline  for  assessing  the  policy  options  identified  to  address  the  three 
problem areas identified above.  

First, the evaluation and the impact assessment have shown that, overall, the TTBER and the 
Guidelines remain useful instruments, as they facilitate the assessment of technology transfer 
agreements  and  increase  legal  certainty  as  compared  to  a  situation  without  them  (see 
Section 2.3).  Coverage  of  an  agreement  by  the  TTBER  and  Guidelines  reduces  businesses’ 
compliance costs significantly – by an average of 33% – compared with a situation in which 
the assessment has to be performed solely on the basis of Article 101 TFEU and the case law. 

Second,  the  current  version  of  the  TTBER  and  Guidelines  constitute  the  relevant  baseline, 
rather  than  any  earlier  version  of  those  instruments,  because  the  changes  made  in  2014 
(which consisted mainly in adding a soft safe harbour for technology pools in the Guidelines 
and amending the list of excluded restrictions in the TTBER) are still relevant, according to 
the results of the evaluation139.  

As explained in more detail in Section 2.5 above, under the baseline scenario (maintenance of 
the current rules) the identified problems are likely to persist. These problems result, on the 
one  hand,  from  the  complexity  of  applying  the  TTBER’s  market  share  thresholds  in  the 
context  of  early  licensing  and,  on  the  other  hand,  from  the  emergence  of  new  market 
practices,  namely  data  licensing  and  LNGs,  for  which  there  are  currently  no  specific 
competition law rules or guidance. Since early licensing and these new market practices are 
likely to continue in the future, under the baseline scenario the current rules would continue 
not to meet their objectives.  

5.2.  Description of the policy options 

As  explained  in  Section  2.1  above,  the  impact  assessment  has  focused  on  one  area  of  the 
existing rules that is complex to apply in certain contexts, namely the TTBER’s market share 
thresholds  for  technology  markets,  and  the  current  lack  of  guidance  on  two  developing 
market practices, namely data licensing and licensing negotiation groups. The policy options 
presented  in  the  call  for  evidence  have  been  further  refined  on  the  basis  of  the  evidence 
gathered in the impact assessment. The final options take into account the general objective 
of  ensuring  the  effective  protection  of  competition,  as  well  as  the  limits  imposed  by  the 
Enabling Regulation140.  

139  See the Evaluation Report, pp. 39-40 and the Evaluation Support Study, pp. 28-29. 
140  See Section 1.3 above for an explanation of the relationship between the TTBER, the  Enabling Regulation 

and Article 101 TFEU.   

30 

 
 
5.2.1.  Policy options for the TTBER’s market share thresholds for technology 

markets 

Under  the  baseline  scenario  for  this  area,  the  application  of  the  block  exemption  would 
continue to be conditional upon the parties’ satisfying the TTBER’s market share thresholds 
for technology markets. Under this scenario, the rules would continue to provide insufficient 
clarity  on  how  market  shares  should  be  calculated  for  new  technologies  that  have  not  yet 
generated product sales. Two policy options have been identified for this area141. 

Under  Option  1,  the  block  exemption  would,  as  a  general  rule,  continue  to  be  conditional 
upon the calculation of market shares in the technology market. However, the application of 
the  thresholds  would  be  clarified  and  simplified  for  technologies  at  an  early  stage  of 
commercialisation.  As  explained  in  more  detail  in  Section  2.1,  the  evaluation  identified 
complexities  in  applying  the  market  share  thresholds  in  such  cases.  More  specifically, 
Option 1 would introduce the following incremental changes: 

- 

the TTBER would specify that technologies that have not yet generated product sales 
are considered to hold a zero market share. Although this rule is already mentioned in 
a  passage  of  the  Guidelines,  several  stakeholder  comments  received  during  the 
evaluation and impact assessment revealed a lack of awareness and understanding142. 
Incorporating this rule in the TTBER and further elaborating on it in the Guidelines 
would increase legal certainty and raise awareness that agreements for the licensing of 
such  technologies  will  benefit  from  the  block  exemption  for  at  least  the  duration  of 
the grace period143;  

141  Regarding  possible  options  concerning  the  TTBER’s  market  share  thresholds,  stakeholder  feedback  in  the 
impact assessment phase was relatively limited. Around 20 stakeholders provided input. The only option that 
was supported by a majority of respondents was to improve the guidance on the application of the TTBER’s 
market share thresholds and on the 4+ test in the Guidelines. A few stakeholders (including large businesses, 
one  association  of  lawyers,  two  business  associations  and  one  academic  institute)  supported  the  complete 
removal of the market share thresholds.  Among those who did, most argued that applying the thresholds is 
particularly  problematic  for  technologies  at  an  early  stage  of  uptake  and/or  that  technology  markets  are 
generally dynamic, with market shares fluctuating significantly, thereby limiting the risk  of market power. 
On  this  basis,  they  criticised  the  TTBER’s  reliance  on  market  shares.  Some  respondents  (including  large 
businesses,  one  law  firm  and  two  research  institutes)  supported  a  test  based  on  the  existence  of  a  certain 
number of alternative technologies. Most of these advocated using a threshold of less than four technologies. 
In this respect, some respondents stated that, particularly at an early stage of technological uptake, it is likely 
that there will be fewer than four alternative technologies on the market in addition to those controlled by the 
parties. Some stakeholders (including one business association and one academic) proposed the introduction 
of  a  simplified  test  for  technologies  that  are  at  an  early  stage  of  uptake  or  at  low  levels  of  technological 
readiness.  Other  stakeholder  contributions  mirrored  the  feedback  received  in  the  evaluation  (described  in 
Section 2.1 above).  

142  See Section 2.1 (Problem 1) of this Report. 
143  See, for example, the replies of two major industry associations to the consultation on the proposed revised 
texts (which incorporated this change), emphasising that “the principle set out in [the] recital of the TTBER 
is also supported […]. This approach helps to recognise the innovative potential of emerging technologies 
and  avoids  penalising  business  models  that  rely  on  intangible  assets  and  high-risk  R&D”  and  that  “the 
clarification in [the] recital [of the TTBER] is an important step […]. It is particularly helpful to specify that 
the market share on a technology market is “zero” when products are not yet available on the market. This 
significantly reduces legal uncertainty”. 

31 

 
 
- 

the grace period provided in Article 8(e) of the TTBER144 would be extended by one 
year  (from  two  to  three  years).  This  would  extend  the  application  of  the  block 
exemption  for  an  additional  calendar  year  in  cases  where  the  parties’  market  shares 
rise above the thresholds during the agreement. The evaluation showed that the grace 
period provides businesses with a degree of comfort when applying the market share 
thresholds,  for  example,  in  situations  involving  fluctuating  market  shares145.  As 
stakeholders noted during the impact  assessment, extending the grace period  by one 
year  increases  legal  certainty  for  companies  introducing  new  technologies  or 
operating  in  markets  with  volatile  shares146.  Extending  it  further  would,  however, 
conflict with empirical findings on the speed of technology adoption147.    

The  practical  effect  of  Option  1  is  that  parties  licensing  technologies  that  have  not  yet 
generated  sales  (“early  licensing”)  could  benefit  from  the  block  exemption  for  at  least  four 
years from the date of signing148, without the need for them to calculate their market shares.  

Option 2 would introduce a 3+ test in the TTBER, as an alternative condition to the current 
market  share  thresholds  for  technology  markets.  The  baseline  scenario  already  includes  the 
4+ test as a soft safe harbour: the Guidelines already explain that Article 101 is unlikely to be 
infringed where there are four or more independently controlled technologies in addition to 
those controlled by the parties. Stakeholders are already familiar with this soft safe harbour 
and rely on it to assess their compliance with competition law. Under Option 2, an agreement 
could still benefit from the block exemption provided that there were fewer than four, namely 
three, alternative technologies on the market. The main practical consequence of this Option 
would therefore be to simplify the application of the market share thresholds for technology 
transfer agreements in markets with fewer than four – namely, three – alternative competing 

144  For an explanation of the grace period, see Section 2.1 (Problem 1) above. 
145  See for example, Rab, S., ‘New EU Technology Transfer Block Exemption: A Note of Caution’, Journal of 

European Competition Law & Practice (2014), pp. 436 et seq. 

146  See, for example, the replies of two major industry associations to the consultation on the proposed revised 
texts, emphasising that “Extending the grace period [by one  year] provides greater flexibility in assessing 
structural changes and improves predictability for subsequent antitrust action, allowing for fluctuations in 
the  parties’  market  shares  following  the  introduction  of  new  technologies  and  the  need  to  recover  their 
investments”  and  that  the  extension  of  the  grace  period  by  one  year  positively  “takes  into  account  the 
volatility of young technology markets and […] increases legal certainty”. 

147  The  literature  on  the  speed of  technology  adoption  shows  that  the  time  required  for  technologies  to  reach 
wide market adoption has decreased in recent decades. While it is difficult to pinpoint an exact number of 
years for adoption across different industries, historical cases indicate that certain technologies (for example, 
the  videocassette  recorder)  took  around  8  years  for  achieving  widespread  commercialisation  after  their 
introduction.  The  literature  also  shows  that  in  some  industries  technological  uptake  has  substantially 
accelerated over the past years. See Gross, R., et al., ‘How long does innovation and commercialisation in 
the  energy  sectors  take?  Historical  case  studies  of  the  timescale  from  invention  to  widespread 
commercialisation  in  energy  supply  and  end  use  technology’,  Energy  Policy,  123,  2018,  pp.  628  et  seq. 
(examining  the  period  between  market  introduction  and  widespread  commercialisation  for  various 
technologies);  Comin,  D.  and  Hobijn,  B.,  ‘An  Exploration  of  Technology  Diffusion’,  The  American 
Economic  Review,  100,  5,  2010,  p.  2049  (explaining  the  evolution  of  technology  uptake  in  certain 
industries). 

148 This would be the case where the technology generates sales of contract products in the same calendar year 
the agreement is signed and, in that same year, the sales of the contract products  result in the market share 
thresholds being exceeded. This is because according to Art. 8(e) of the TTBER, the grace period applies for 
a  number  of  ‘consecutive  calendar  years’  (three  years  under  Option  1)  ‘following  the  year  in  which  the’ 
thresholds are exceeded.   

32 

 
 
technologies. In such cases, parties would no longer need to calculate market shares, although 
they would still need to identify substitutable technologies.  

Options 1 and 2 are not mutually exclusive and could therefore be introduced together. 

5.2.2.  Policy options for data licensing 

The  baseline  scenario  for  this  area  consists  of  not  providing  guidance  on  data  licensing 
agreements in the revised TTBER and Guidelines, which would therefore continue to remain 
silent  on  the  issue.  Therefore,  under  this  baseline  scenario,  businesses  would  continue  to 
assess  the  compliance  of  their  data  licensing  agreements  using  only  Article  101  TFEU  and 
the case law and decisional practice (which is currently rather scarce).  

Two policy options have been identified for this area, both of which aim to provide guidance 
on the competition law assessment of data licensing agreements149. While both options would 
increase legal certainty, the two options are incremental: Option 1 focuses only on clarifying 
which types of data licensing agreements are covered by the block exemption provided by the 
TTBER. Option 2 – in addition to the clarification to be provided under Option 1 – foresees 
the inclusion in the rules of additional guidance on certain data licensing agreements that fall 
outside the scope of the TTBER150. In more detail: 

Option 1 would update the current rules to clarify under which circumstances data licensing 
agreements  can  benefit  from  the  block  exemption  provided  by  the  TTBER.  The  updated 
guidance would not expand the scope of the TTBER to include new rights in data, but would 
clarify that data licensing can benefit from the block exemption where: 

149  The policy options for data licensing agreements elicited limited feedback from stakeholders. In response to 
the  impact  assessment  public  consultation,  9  stakeholders responded  that  at  least  certain  types of  data  can 
qualify as know-how (including 5 businesses in the automotive, energy and telecoms sectors; 2 associations, 
2  universities/academics),  while  4  expressed  doubts  about  this  (1  company  in  the  telecoms  sector,  2 
associations  and  1  law  firm).  Stakeholders  interviewed  by  the  external  expert  for  the  Evaluation  Support 
Study were also asked to address how data fits the  TTBER’s definition of know-how (see page 194 of the 
Evaluation Support Study). The Expert Report on Data Licensing confirmed that data can qualify as know-
how,  but  also  as  software  copyright  or  as  a  patent.  As  regards  the  possibility  to  provide  guidance  in  the 
TTBER and the Guidelines on data licensing agreements that do not fall within the scope of the TTBER, a 
majority of respondents in the impact assessment public consultation agreed with that option. In particular, 
when asked whether providing guidance in the Guidelines on data licensing agreements would provide legal 
certainty, 8 respondents agreed (3 businesses in the automotive and health technology sectors, 3 associations, 
2 academic/research institutions), while 1 (a law firm) disagreed. Lastly, many stakeholders throughout the 
evaluation and impact assessment phases were in favour of expanding the list of technologies covered by the 
TTBER  to  directly  cover  certain  IP  or  similar  rights  that  are  specific  to  data.  However,  as  explained  in 
Section 5.3 below, that option was discarded. 

150  Regardless of the policy option, it should be emphasised that the TTBER and the Guidelines cannot provide 
guidance on every type of data licensing agreement or for every possible type of restriction contained in such 
agreements. This applies to competition law guidance in general, but is particularly true for a fast-evolving 
practice  such  as  data  licensing,  where  there  is  so  far  very  little  enforcement  practice.  For  this  reason,  the 
options  focus  on  providing  guidance  for  those  data  licensing  agreements  that  most  closely  resemble 
technology transfer agreements. 

33 

 
 
i. 

ii. 

the  licensed  data  qualifies  as  one  of  the  technology  rights  (including  know-how)151 
covered  by  the  TTBER,  for  example  patents  or  software  copyright,  as  defined  in 
Article 1 of the TTBER; or 

the data licensing satisfies the conditions of Article 2(3) of the TTBER, namely (a) it 
takes place within a technology transfer agreement that itself fulfils the conditions of 
the TTBER; (b) it is directly related to the production or sale of the contract products, 
and  (c)  it  qualifies  as  the  licensing  or  assignment  of  intellectual  property  rights  or 
know-how to the licensee. 

Under  this  option,  the  guidance  to  be  provided  would  concern  only  those  data  licensing 
agreements that meet the conditions of the TTBER, while no guidance would be provided for 
the  competition  law  assessment  of  data  licensing  agreements  that  do  not  meet  such 
conditions. 

Option  2  is  to  provide  the  guidance  described  under  Option  1  and,  in  addition,  to  provide 
guidance on data licensing agreements that fall outside the TTBER.  

As regards its scope, this new guidance would focus on the licensing of those types of data 
that  are  most  similar  to  the  technology  rights  already  covered  by  the  TTBER,  including  in 
terms of competitive effects, i.e. databases protected by copyright or by the sui generis right 
defined  in  Article 7  of  the  Database  Directive  (the  ‘database  sui  generis  right’)152.  The 
assessment  of  agreements  for  the  licensing  of  such  databases  gives  rise  to  similar 
considerations as the licensing of technology rights covered by the TTBER. In particular, the 
creation of databases protected by copyright or by the database sui generis right may entail 
significant investments and the licensing of such databases is, in general, pro-competitive. It 
promotes  innovation,  by  allowing  database  creators  to  earn  a  return  on  their  R&D  costs.  It 
also  leads  to  the  dissemination  of  data  protected  by  intellectual  property  rights,  which  may 
increase  downstream  innovation  and  create  value,  by  reducing  the  production  costs  of 
licensees or by enabling them to produce new or improved products. 

As regards the content of this new guidance, the guidance would explain that the Commission 
will  generally  apply  the  principles  of  the  TTBER  and  the  Guidelines  when  assessing 
licensing  of  databases  protected  by  copyright  or  the  database  sui generis  right.  This  would 

151  For example, the data could consist of the method to be used for a production process, such as a new method 
of chemical synthesis. Such data could constitute know-how within the meaning of the TTBER. The method 
could also be patentable.  

152  Stakeholders  were  divided  on  the  need  to  cover  additional  types  of  data.  Some  respondents  to  the  public 
consultation  stated  that  the  licensing  of  other  types  of  data,  such  as  for  example  raw  data  or  data  not 
protected  by  any  type  of  intellectual  property,  can  have  significantly  different  effects  on  competition 
compared  to  the  licensing  of  technologies  covered  by  the  TTBER.  For  example,  a  business  association 
recognised  the  difficulties  of  applying  the  TTBER  framework  to  all  types  of  data.  Another  business 
association agreed that database copyright and the database sui generis right are the only rights in data that 
are sufficiently clear and specified to be included in the TTBER framework. It has been pointed out that in 
the absence of significant investments to collect the data, restrictions of competition included in the licensing 
of  such  data  may  be  harder  to  justify  under  Article  101(3)  compared  to  similar  restrictions  in  technology 
transfer agreements. Overall, the lack of enforcement experience in this particular  field does not allow the 
Commission to provide specific guidance within the TTBER framework on the application of Article 101 to 
the licensing of other types of data (namely, those that are less similar to the technology rights covered by 
the TTBER). 

34 

 
 
provide companies with a clear indication of the rules that the Commission will apply when 
assessing  those  types  of  data  licensing  agreements  under  Article  101  TFEU153.  The  new 
guidance would also include explanations on the applicable rules concerning the exchange of 
commercially sensitive information through data licensing agreements and a clarification on 
how the Commission will assess under Article 101 the data-sharing agreements mandated by 
Chapter II of the Data Act154.   

5.2.3.  Policy options for licensing negotiation groups 

The  baseline  scenario  for  this  area  is  the  continued  absence  of  guidance  for  this  type  of 
agreement. Businesses wishing to set up LNGs would therefore continue to face a high level 
of  legal  uncertainty  and  high  compliance  assessment  costs.  Two  policy  options  have  been 
identified for this area. 

Option 1 is to provide new guidance for the assessment of LNGs under Article 101 TFEU. 
The guidance would provide a framework for assessing whether an LNG restricts competition 
within the meaning of Article 101(1) TFEU and, if so, whether it meets the conditions of the 
exception  provided  by  Article 101(3)  TFEU.  As  LNGs  typically  involve  an  agreement 
between competitors, the guidance would explain the distinction between a genuine LNG and 
a  buyer  cartel,  and  set  out  factors  for  assessing  whether  an  LNG  is  likely  to  restrict 
competition  ‘by  object’  or  ‘by  effect’155.  Regarding  restrictive  effects,  the  guidance  would 
emphasise  the  need  to  consider  whether  the  members  of  the  LNG  hold  market  power, 
whether they seek to coerce technology  owners into negotiating with the LNG and whether 
the  joint  negotiation  of  licences  through  the  LNG  is  likely  to  lead  to  a  high  degree  of 
commonality  of  costs  between  the  LNG  members,  such  as  to  be  capable  of  facilitating 
downstream  collusion.  The  guidance  would  cover  the  competitive  effects  of  LNGs  in 
upstream  technology  licensing  markets  and  in  downstream  product  markets156.  Lastly,  the 
guidance would recall that agreements which produce restrictive effects may nonetheless be 
compatible  with  Article 101  where  they  generate  efficiencies  that  outweigh  the  negative 
effects and meet the conditions of Article 101(3).  

Option 2 is to provide the new guidance outlined under Option 1, together with  a soft safe 
harbour.  This  would  state  that  LNGs  that  meet  a  series  of  conditions  regarding  their 
establishment  and  operation  are  generally  unlikely  to  infringe  Article 101 TFEU,  i.e.  these 
LNGs would benefit from a soft law presumption of compliance157.  

153 This guidance would be included in the Guidelines, which bind the Commission in its enforcement practice 

and are therefore able to provide a good degree of legal certainty to businesses. 

154  Regulation  (EU)  2023/2854  of  the  European  Parliament  and  of  the  Council  of  13  December  2023  on 
harmonised rules on fair access to and use of data and amending Regulation (EU) 2017/2394 and Directive 
(EU) 2020/1828 (Data Act), OJ L, 2023/2854. 

155  Restrictions ‘by object’ are a category of particularly harmful restrictions of competition, for which it is not 
necessary  to  demonstrate  actual  or  potential  effects  on  the  market.  Price-fixing  and  market-sharing 
agreements between competitors are examples of restrictions by object.  

156  In the impact assessment public consultation, the proposal to provide guidance on LNGs was supported by 
technology  implementers  (businesses  and  business  associations)  and  opposed  by  technology  owners 
(businesses and business associations); see Annex 2, Section 2.1 for the results of the consultation.  

157  The Commission has provided soft safe harbours for various types of multilateral agreements, with the aim 
of  increasing  legal  certainty.  These  include  technology  pools  (see  Chapter 4.4  of  the  Guidelines),  joint 

35 

 
 
 
5.3.  Options discarded at an early stage 

Letting the TTBER expire 

Allowing  the  TTBER  to  expire  was  an  option  discarded  at  an  early  stage  as  this  would 
conflict  with  the  Union’s  objectives  of  promoting  innovation,  growth  and  competitiveness. 
Technology  licensing  is  an  important  means  of  disseminating  innovation,  and  a  block 
exemption  framework  facilitates  such  dissemination  by  enabling  businesses  to  conclude 
licences with greater legal certainty. Letting the TTBER expire would potentially discourage 
technology licensing, because it would make it harder for businesses to assess the compliance 
of their agreements  with  Article 101 TFEU. This approach is  also  consistent  with  the clear 
finding of the Evaluation that the TTBER and Guidelines remain relevant, as they facilitate 
the competition law assessment of technology transfer agreements by businesses158. 

The TTBER’s market share thresholds for technology markets 

The call for evidence of the impact assessment phase set out two policy options - the second 
including  two  sub-policy  options  -  to  address  the  practical  difficulties  reported  by 
stakeholders in applying the TTBER’s market share thresholds for technology markets. One 
of these options was discarded at an early stage, i.e. removing the market share thresholds for 
technology markets altogether, leaving only the thresholds for relevant product markets.     

This policy option was discarded because it would not take into account the possibility that 
the parties may hold market power in relevant technology licensing markets. As explained in 
Section 2.1 above, competitive conditions may differ between the relevant technology market 
and the relevant product market. For instance, under this option, a technology owner that has 
market power in technology licensing but is not active in the product market would be able to 
enter  into  restrictive  licensing  agreements  (with  competitors  or  non-competitors)  within  the 
block exemption provided that each licensee held a market share below 20% or 30% in the 
relevant product market159. Several stakeholders highlighted this risk in their contributions to 
the impact assessment public consultation160. 

purchasing  agreements,  standardisation  agreements  and  sustainability  standardisation  agreements  (see 
Chapters  4,  7  and 9  respectively  of  the  Horizontal  Guidelines).  Commission  Guidelines  bind  only  the 
Commission, not the Union Courts, NCAs or national courts, however NCAs and national courts typically 
take the Commission’s guidelines into account when they assess agreements under Article 101 TFEU. 

158  See  pages  42-43  of  the  Evaluation  Report,  which  confirms  the  need  for  a  block  exemption  regulation  for 
technology  transfer  agreements,  and  concludes  that  the  TTBER  and  Guidelines  have  overall  met  their 
objectives and achieved these objectives in an efficient way. 

159  Under  the  footprint  methodology  imposed  by  the  TTBER  for  calculating  market  shares  in  technology 
markets, a technology owner’s market share in the technology market is inferred from the combined market 
shares of all its licensees in the product market. The removal of the market share thresholds for technology 
markets  would  be  particularly  problematic  for  agreements  between  competing  technology  licensors.  For 
example, let us assume that there are only two technologies to  manufacture a certain  product. Technology 
owner A does not itself manufacture the product but licenses its technology to manufacturers of the product. 
Technology owner B owns the competing technology and licenses it to manufacturers, but also manufactures 
the product itself and has a market share below 20 % in the product market. Under the current TTBER, these 
two firms would have a 100% share of the relevant technology market, therefore any technology licensing 
agreement between them  would fall outside the block exemption. If the  TTBER’s  market share thresholds 
for  technology  markets  were  to  be  removed,  it  would  be  possible  for  technology  owner  A  to  grant  a 

36 

 
 
 
Data licensing agreements 

The call for evidence of the impact assessment phase also presented as an alternative option 
the possibility of expanding the definition of “technology rights” included in the TTBER to 
bring within the scope of the block exemption the licensing of data protected by intellectual 
property  rights  that  do  not  fall  within  the  current  definition  of  “technology  rights”  (for 
example, database sui generis rights). This would go further than Option 2, because it would 
use the TTBER, rather than the Guidelines to provide rules for assessing agreements for the 
licensing of data that does not fall within the current definition of technology rights included 
in the TTBER. 

This  policy  option  was  discarded  because  of  the  lack  of  experience  in  the  enforcement  of 
antitrust  rules  in  this  sector  and  because  it  is  not  certain  that  the  Enabling  Regulation 
empowers  the  Commission  to  extend  the  scope  of  the  TTBER  to  this  type  of  licensing.  In 
particular, the Enabling Regulation empowers the Commission to block-exempt agreements 
for  the  licensing  of  industrial  property  rights  and  production  know-how  (see  Section  1.3 
above).  Consequently,  by  extending  the  scope  of  the  TTBER  in  this  way,  the  Commission 
might exceed its powers, thereby rendering the revised TTBER invalid.   

The  Commission  also  discarded  at  an  early  stage  the  option  to  present  to  the  Council  a 
proposal to modify the Enabling Regulation to allow the inclusion of this type of licensing in 
the  TTBER.  Through  enabling  regulations,  the  Council  allows  the  Commission  to  adopt 
block exemption regulations to exempt certain agreements from Article 101 TFEU where the 
experience allows the Commission to conclude, with sufficient certainty, that the conditions 
set  in  Article  101(3)  would  be  fulfilled.  This  generally  occurs  in  sectors  or  for  agreements 
where the competitive effects of certain practices are clear and where enforcement experience 
of  the  Commission  has  been  sufficiently  developed,  to  ensure  that  the  exemption  is  not 
granted to agreements that are anti-competitive. Given the novelty of data licensing, and the 
scarcity of antitrust enforcement in that sector, it would have been premature to present to the 
Council a proposal to modify the Enabling Regulation in this regard. 

6.  WHAT ARE THE IMPACTS OF THE POLICY OPTIONS? 

This  section  presents  the  main  impacts  of  the  policy  options  described  in  Section 5.2 
compared  to  the  baseline  scenario.  These  policy  options  would  primarily  affect  businesses 
that  use  the  TTBER  and  Guidelines  to  assess  the  compliance  of  their  technology  transfer 

worldwide  exclusive  licence  to  technology  owner  B.  This  would  mean  that  potential  licensees  would  no 
longer benefit from competition between  the two technology owners for the grant of licences. Technology 
owner B  would  be  able  to  increase  the  price  of  the  technologies.  Competition  in  the  relevant  technology 
market would be eliminated, contrary to the conditions of Article 101(3) TFEU.    

160  Only a few stakeholders advocated removing the market share thresholds, based on the arguments set out in 
Section 5.2.1: one of these stakeholders (a business) acknowledged the risk that such removal could result in 
block-exempting all agreements entered into by licensors with market power in the technology market, but 
not in the product market.  The Commission’s enforcement experience also shows that  technology markets 
are  not  always  dynamic,  particularly  when  technologies  are  at  an  advanced  stage  of  uptake.  The  risk  of 
block-exempting anti-competitive agreements was also highlighted by other stakeholders in response to the 
impact assessment public consultation (including two research institutes and one academic).  

37 

 
 
agreements  with  EU  competition  law161.  Indirectly,  the  policy  options  would  also  affect 
consumers. By facilitating compliance assessments for businesses, the policy options should 
encourage the conclusion of a greater number of technology-related agreements. This would, 
in turn, increase the diffusion of technology, which can be expected to benefit consumers in 
the form of more innovative products, greater quality and variety, and lower prices.  

The  following  sub-sections  assess  the  impacts  of  the  options  on:  (i)  competition  in  the 
market; (ii) businesses (including SMEs), and (iii) innovation and competitiveness. The direct 
impacts (on competition and businesses) are assessed in more depth than the indirect impacts 
(on  innovation  and  competitiveness).  The  evidence  gathered  during  the  impact  assessment, 
notably the feedback from stakeholders and NCAs, shows that the policy options would have 
limited  or  no  impact  on  social  issues,  environmental  issues162  or  fundamental  rights.  These 
areas are therefore not further assessed.  

The assessment of the impacts of the policy options is subject to limitations similar to those 
faced  during  the  evaluation  of  the  current  rules163.  Stakeholders  provided  qualitative,  albeit 
limited,  feedback  on  the  costs  and  benefits  of  the  policy  options164.  However,  it  proved 
difficult to obtain quantitative evidence.     

The assessment of impacts therefore relies heavily on qualitative evidence. Where available, 
quantitative  evidence  was  generated  by  extrapolating  from  the  data  in  Section  2.3.  The 
qualitative evidence included: the feedback from stakeholders, the enforcement experience of 
the Commission, the Evaluation Support Study and the Expert Report on Data Licensing. The 
feedback  of  stakeholders  is  of  particular  importance,  since  businesses  that  use  the  rules  to 
assess the compliance of their technology transfer agreements with Article 101 TFEU are the 
primary users of the TTBER and Guidelines. They therefore have practical experience of the 
impacts of the rules.  

161  The results of the evaluation indicate that the policy options would have only a limited impact on NCAs and 
national courts. The Evaluation Support Study found very limited case law and enforcement practice directly 
applying  the  TTBER  and  Guidelines.  The  NCAs  also  confirmed  that  they  have  limited  experience  of 
applying the TTBER. See, for example, pages 29 and 30 of the Evaluation Support Study.  

162  Technology  transfer  agreements  play  a  role  in  the  Union’s  green  transition,  but  the  policy  options  do  not 
relate  specifically  to  technology  transfer  agreements  that  pursue  sustainability  objectives.  Moreover, 
sustainability  attracted  almost  no  attention  from  stakeholders  during  the  evaluation:  see  the  Evaluation 
Support Study, p. 96. 

163  See Section 2.3 above. For example, in the impact assessment public consultation, one of the impact-related 
questions  that  elicited  the  highest  number  of  responses  received  only  14  replies,  including  2  stakeholders 
who answered “Do not know”. More generally, the Evaluation Support Study (pp. 13–14, 16–18, 30) noted 
the  limited  number  of  recent  studies  in  the  field  covered  by  the  TTBER  and  Guidelines;  the  limited 
decisional practice and case law in the area, as well as the limited amount of public information on licensing 
agreements.  

164   In  the  impact  assessment  public  consultation  questionnaire,  stakeholders  were  asked  about  the  expected 
impact on their compliance assessment costs of options relating to the TTBER’s market share thresholds and 
data  licensing.  The  responses  provided  qualitative,  albeit  limited,  evidence  about  whether  some  of  the 
options would have a positive, neutral or negative impact on compliance assessment costs. In particular, ten 
stakeholders  indicated  that  providing  guidance  on  data  licensing  would  have  a  positive  impact  on  their 
compliance  assessment  costs.  Additional  qualitative  feedback  was  gathered  during  the  consultation  on  the 
draft  revised  texts.  The  draft  revised  texts  that  were  published  for  consultation  incorporated  one  of  the 
options assessed below. For more details on the results of the public consultation on the draft revised texts, 
see Annex 2. 

38 

 
 
In  the  assessment  of  the  stakeholder  feedback,  due  account  was  given  to  the  fact  that  the 
feedback  was  not  necessarily  representative165.  For  certain  areas  (for  example,  LNGs),  the 
report  takes  account  of  the  fact  that  technology  owners  and  technology  implementers  have 
opposing interests and therefore their views  may differ. Overall, but  especially  where there 
were diverging opinions, the assessment  gave particular weight to the arguments raised. As 
explained  in  Annex  4,  for  each  area  of  the  rules,  the  assessment  applied  a  triangulation 
approach,  giving  particular  weight  to  stakeholder  views  that  were  consistent  with  other 
sources  of  evidence  (for  example,  the  findings  of  the  evaluation,  the  Commission’s 
enforcement practice and the Expert Report on Data Licensing). 

6.1.  The TTBER’s market share thresholds for technology markets 

6.1.1.  Impact on competition in the market 

Option  1  (clarifying  that  “early  licensing”  is  deemed  to  have  a  zero  market  share  in  the 
technology market and extending the TTBER’s grace period by one year) would, on balance, 
have  a  positive  impact  on  competition.  As  noted  above,  a  key  consequence  of  this  option 
would be that early licensing could benefit from the block exemption for a period of at least 
4 years from the date of the licensing agreement. Although the pace of technological uptake 
varies  considerably  between  technologies,  the  economic  literature  shows  that  adoption  can 
often take years166 and that technology markets are often competitive in the early stages of a 
technology’s life cycle167. During this period, the parties are less likely to hold market power 
in  the  technology  market.  Furthermore,  by  encouraging  early  licensing,  this  option  would 
promote the dissemination of new technologies, thereby enhancing competition. Even though 
it cannot be excluded that, in specific scenarios, a technology that is subject to early licensing 
may  hold  market  power,  in  such  scenarios  the  block  exemption  would  only  apply  for  the 
duration of the grace period168.  

Option 2 (introducing an alternative test based on the presence on the market of at least three 
other substitutable technologies, i.e. the 3+ test) would, on balance, have a negative impact 
on  competition.  Under  this  option,  technology  transfer  agreements  could  benefit  from  the 
block  exemption  if  at  least  three  other  independently  controlled  substitutable  technologies 
were  present  on  the  market,  irrespective  of  whether  the  technology  licensed  under  the 
agreement generated sales of products. Experience shows that technology markets can sustain 

165  The  impact  assessment  included  a  call  for  evidence,  an  open  public  consultation  based  on  an  online 
questionnaire  and  a  public  consultation  on  draft  revised  rules.  Participation  in  these  consultations  was 
voluntary  and  therefore  did  not  necessarily  produce  representative  results,  even  though  the  Commission 
reached  out  to  categories  of  stakeholders  that  are  typically  under-represented,  such  as  micro-  and  small 
stakeholders, representatives of SMEs, and consumer associations. 

166  See Section 2.4 above. 
167  See, for example, Arora, A. and Gambardella,  A. ‘Ideas for rent: an overview of markets for technology’, 

Industrial and Corporate Change, 19, 3, 2010, p. 789. 

168  Moreover,  the  evaluation  showed  that  the  current  TTBER  has  been  successful  in  exempting  only  those 
agreements  that  meet  the  conditions  of  Article 101(3) TFEU  (see,  for  example,  page  25  of  the  Evaluation 
Report).  The  proposed  changes  can  be  regarded  as  incremental  to  the  existing  framework,  since  under 
Option 1, the text of the TTBER would simply incorporate what is already stated in the Guidelines, and the 
grace period would be extended by one year. Furthermore, the TTBER only block-exempts agreements from 
the application of Article 101 TFEU and is without prejudice to the application of other legislation (see also 
recital 14 of the TTBER). 

39 

 
 
several technologies even though market power is held by only one or a few firms. In such 
cases,  where  competitors  operate  only  at  the  margins,  technology  transfer  agreements 
involving  firms  with  market  power  may  produce  appreciable  anti-competitive  effects. 
Enforcement experience demonstrates that even where three other substitutable technologies 
exist in addition to those controlled by the parties, the agreement may still result in significant 
competitive harm contrary to Article 101(1) TFEU169. This option would therefore create the 
risk  of  block-exempting  agreements  for  which  it  cannot  be  assumed  that  their  efficiencies 
outweigh their anti-competitive effects.  

6.1.2.  Impact on businesses (including SMEs) 

Option 1 would have a positive impact on businesses, as it would increase legal certainty for 
businesses wishing to enter into technology transfer agreements and reduce their compliance 
costs, thereby encouraging them to conclude such agreements. This is also confirmed by the 
views of stakeholders collected during the consultation on the proposed revised texts170.  

In the case of early licensing, businesses could refrain from engaging in market definition and 
calculation of market shares for at least 4 years from the date of licensing as a consequence of 
Option 1. In particular, this delay would benefit businesses that are less experienced with the 
definition  of  downstream  markets171  and  calculating  market  shares,  as  it  would  give  them 
time to better understand technological uptake and possible substitutes.  

To  give  an  indication  of  the  potential  cost  savings,  this  report  attempts  to  provide  a  rough 
estimate of the  potential reduction in  compliance  assessment costs per licensing agreement, 
based  on  indicative  figures  suggesting  that  assessing  whether  an  agreement  falls  within  the 
scope  of  the  TTBER  requires,  on  average,  EUR  3,750  per  agreement,  and  that  the  cost  of 
applying  the  market  share  thresholds  is  approximately  EUR  787.5  per  licensing  agreement 
(see Section 2.3). Costs for verifying compliance with the market share thresholds consist of: 
one-off  costs,  generally  incurred  before  signing  (initial  market  definition  and  market  share 
estimation), and periodic costs, incurred after signature to verify that the agreement continues 
to  respect  the  thresholds.  For  the  purposes  of  the  present  analysis,  an  annual  frequency  is 
assumed  (with  assessments  at  the  end  of  year  1  and  each  subsequent  year  of  the  licensing 
agreement)172. Under Option 1, firms could generally postpone one-off costs until the end of 

169  See,  for  example,  Commission  decision  of  20.12.2012  in  Case  AT.39230  Rio  Tinto  Alcan,  paragraph  107 

and footnote 57. 

170  The majority of stakeholders - including one public authority, three industry associations, one company, one 
think tank, one association of lawyers, two association of IP advisors and litigators - who commented on the 
market share thresholds for technology markets expressed support for the proposed revisions to the TTBER 
and Guidelines, which reflect Option 1.  

171  See  Section  2.1  above.  Furthermore,  in  the  consultation  on  the  proposed  revised  texts,  two  industry 
associations  stated  that  certain  actors  -  particularly  those  specialising  in  R&D  activities  and  technology 
valorisation  -  face  greater  complexities  than  others  when  applying  the  market  share  thresholds.  They  also 
noted  that  the  revisions  to  the  TTBER  and  Guidelines  reflecting  Option  1  would  help  to  address  these 
complexities. 

172  This annual periodicity was, for instance, mentioned by one industry association in the context of the public 
consultation on the proposed revised texts. The baseline scenario reflects the most conservative scenario, in 
which firms are completely uncertain about how the market share thresholds  and the grace period apply to 
early  licensing  and  therefore  carry  out  market  share  assessments  on  an  annual  basis.  It  is  nevertheless 
plausible  that  many  firms  understand  at  least  that  the  grace  period  applies  once  the  licensed  technology 
begins  to  generate  sales.  Accordingly,  a  sensitivity  analysis  is  carried  out  assuming  biannual  periodic 

40 

 
 
 
year  4  and  could  avoid  several  periodic  assessments  during  the  term  of  the  agreement, 
conducting  the  first  periodic  assessment  only  at  the  end  of  year  5.  Based  on  a  number  of 
assumptions,  Option  1 is  estimated to  reduce  compliance  assessment  costs  for  applying the 
market  share  thresholds  by  approximately  19-39  %  on  average  per  licensing  agreement, 
corresponding to savings of around EUR 150-300 per agreement173. While modest in absolute 
terms,  these  cost  reductions  can  be  material,  particularly  for  smaller  firms,  universities  or 
licensing agreements with uncertain or limited expected returns. Based on our extrapolation 
of the number of agreements likely to be affected by the problem (see Section 2.3), aggregate 
annual  savings  in  compliance  assessment  costs  are  estimated  to  amount  to  between 
EUR 223,000 and EUR 1,836,000.    

More  generally,  Option  1  would  reduce  the  risk  that  businesses  need  to  carry  out  an 
individual  assessment  of  their  agreements  under  Article  101 TFEU.  As  an  indirect  effect, 
Option  1  could  also  encourage  firms  to  conclude  a  greater  number  of  technology  transfer 
agreements, particularly at an early stage of technological uptake.  This would be especially 
relevant  for  SMEs174  and  for  agreements  with  modest  value,  for  which  even  a  modest 
reduction  in  compliance  assessment  costs  could  enhance  firms’  capacity  and  likelihood  to 
enter  into  technology  transfer  agreements.  Early  licensing  could  in  turn  increase  licensors’ 

assessments (assessment at the end of years 2, 4, etc.). The available evidence does not provide information 
on  (i)  the  average  duration  of  licensing  agreements  or  (ii)  the  breakdown  between  one-off  and  periodic 
compliance costs under the baseline scenario. For the purpose of this analysis, it is assumed that 50-75% of 
the  costs  are  one-off  costs,  while  25–50%  represent  the  recurrent  periodic  assessments.  Economic  studies 
suggest that the average duration of licensing agreements ranges between 6 and 8 years. See, for example, 
Pressman, L. et al., ‘The licensing of DNA patents by large U.S. academic institutions: an empirical survey’, 
Nat.  Biotechnol.,  24(1),  2006,  pp.  31–39  (finding  an  average  duration  of  active  licences  of  8  years).  For 
simplicity,  this  assessment  uses  7  years  as  the  average  duration.  Starting  from  the  cost  of  assessing 
compliance  with  the  market  share  thresholds  (i.e.  EUR  787.5),  one-off  compliance  costs  are  estimated  at 
EUR  393.75–590.63,  while  periodic  compliance  costs  range  between  EUR  196.88–393.75.  If  periodic 
assessments are carried out annually, each assessment costs EUR 28.13–56.25; if assessments are conducted 
every two years, each periodic assessment costs EUR 65.63–131.25. 

173  The breakdown of costs incurred by business under the baseline scenario is detailed in the footnote above. 
The  estimation  of  the  savings  achieved  by  postponing  one-off  costs  until  the  end  of  year  4  and  avoiding 
several periodic assessments during the term of the agreement is calculated as follows. First, a discount rate 
of  3%  is  applied  to reflect  the  time  value  of  money.  See  page  561 of  the  Better  Regulation  Toolbox.  The 
discounted value of postponing a one-off cost is calculated as: costs/(1+discount rate)number of years by which the cost 
is postponed. Postponing one-off compliance costs by four years therefore corresponds to dividing those costs by 
1.12550881, resulting in discounted one-off costs of EUR 349.84-524.77 (so a reduction in present value of 
EUR 43.91-65.86). Second, the same discount rate and a similar formula are applied to compute the present 
value  of  avoided  periodic  assessments.  Under  annual  assessments,  a  firm  would  avoid  the  following 
discounted costs: Year 1: EUR 27.32-54.61; Year 2: EUR 26.53-53.06; Year 3: EUR 25.76- 51.53; Year 4: 
EUR  25.01-50.03.  This  corresponds  to  total  avoided  costs  of  EUR  104.62-209.23.  Under  biannual 
assessments, the avoided discounted costs are: Year 2: EUR 61.86-123.72; Year 4: EUR 58.33-116.66. The 
overall effective cost reduction is therefore EUR 148.53-275.09 under annual assessments and EUR 164.10-
306.24 under biannual assessments.       

174  Even though SMEs often have low market shares and would therefore be easy cases to assess as meeting the 
block  exemption, there may be situations in which  SMEs exceed the market share  thresholds, for  instance 
due to the novelty of the technology or the small size of the relevant market. See also the Evaluation Support 
Study,  p.  92  (suggesting  that  the  efficiency  gains  stemming  from  the  TTBER  are  larger  for  smaller 
companies, given the scale of self-assessment costs) and p. 306 (noting cases in which even large firms may 
be  deterred  from  licensing  a  small  part  of  their  intellectual  property  portfolio  due  to  the  costs  of  self-
assessment).   

41 

 
 
revenues,  as  well  as  improve  licensees’  productivity  and  R&D  capabilities175.  By  reducing 
the  time  and  resources  that  businesses  devote  to  compliance  assessments,  this  option  could 
also lower opportunity costs, allowing firms to focus on more productive activities. 

Option  2  would,  overall,  have  a  positive  or  neutral  effect  on  businesses.  Any  reduction  in 
compliance  costs  is  likely  to  be  limited176.  For  agreements  where  three  independently 
controlled substitutable technologies are present on the market, Option 2 would allow them to 
benefit  from  the  block  exemption  without  the  need  to  calculate  market  shares.  Businesses 
would, however, still need to identify substitutable technologies, which can be more complex 
than calculating market shares. This is corroborated by the results of the impact assessment 
public  consultation  questionnaire:  several  stakeholders  considered  that  a  test  based  on  the 
number of substitutable technologies would not increase legal certainty177.   

Option 2 may also have a (likely limited) indirect effect by encouraging firms to conclude a 
greater number of technology transfer agreements. Similarly to Option 1, this could generate 
positive  effects  for  licensors  and  licensees  (for  example,  increased  productivity  and  lower 
opportunity costs)178. However, it could also produce negative indirect effects if agreements 
concluded by firms with market power contained anti-competitive restrictions, which could, 
for  example,  hinder  licensees  from  efficiently  commercialising  the  licensed  technology 
and/or prevent licensors from licensing their technologies efficiently.  

Options 1 and 2 would have impacts on SMEs consistent with those outlined above for each 
option179.  

6.1.3.  Impact on European innovation and competitiveness 

Option  1  would  have  a  positive  (indirect)  impact  on  innovation  and  competitiveness  by 
making it easier for businesses to assess whether their agreements meet the conditions of the 
TTBER, thus facilitating the conclusion of pro-competitive technology transfer agreements.  

175  See, for example, Gans, J.S., Hsu, D.H. and Stern, S., ‘The impact of uncertain intellectual property rights on 
the market for ideas: evidence from patent grant delays’, Management Science, 54(5), 2008, pp. 983-985 and 
988;  Jeong,  S.  and  Lee,  S.,  ‘Strategic  timing  of  academic  commercialism:  evidence  from  technology 
transfer’, The Journal of Technology Transfer, 40, 2015, p. 911; Arora, A. and Gambardella, A., ‘Ideas for 
rent:  an  overview  of  markets  for  technology’,  Industrial  and  Corporate  Change,  19(3),  2010,  p.  788; 
Elfenbein,  D.H.,  ‘Publications,  patents  and  the  market  for  university  inventions’,  Journal  of  Economic 
Behavior & Organization, 63, 2007, p. 694; Hedge, D. and Luo, H., ‘Patent publication and the market for 
ideas’, Management Science, 64, 2, 2018, pp. 654-655.  

176  The  4+  test  in  the  Guidelines  already  functions  as  a  soft  safe  harbour,  and  the  evaluation  shows  that 
stakeholders  are  familiar  with  its  application.  See,  for  example,  the  Evaluation  Report,  pp.  30-31.  This  is 
further confirmed by the replies to the impact assessment public consultation questionnaire. Therefore, this 
option  is  likely  to  have  little  or  no  impact  on  compliance  assessment  costs  for  agreements  where  four  or 
more independently controlled substitutable technologies are present on the market.       

177  See Section 2.1 of Annex 2. 
178  See  also  Chemmanur,  T.J.,  Chen,  X.  and  Zhang,  J.,  The  Economics  of  Patent  Licensing:  An  Empirical 
Analysis  of  the  Determinants  and  Consequences  of  Patent  Licensing  Transactions,  2024  (explaining  the 
general  benefits  of  licensing  for  licensors’  and  licensees’  firm  value,  productivity  and  innovation 
capabilities), available at https://afajof.org/management/viewp.php?n=133532.  

179  With  the  possible  difference  that  SMEs  -  given  their  generally  weaker bargaining position  -  may  be  more 
exposed  than  other  businesses  to  the  indirect  negative  effects  of  Option  2  arising  from  the  imposition  of 
restrictions with potential anti-competitive effects.   

42 

 
 
These positive effects will primarily benefit EU businesses, as EU competition law applies to 
agreements that have effects on the EU market180 and therefore often involve at least one EU-
based  licensor  or  licensee.  Thus,  even  though  the  TTBER  and  the  Guidelines  are  neutral 
regarding the nationality of the parties, the businesses most likely to rely on the TTBER and 
the Guidelines to assess their technology transfer agreements are EU-based181.  

Regarding  innovation:  by  making  it  easier  for  businesses  to  conclude  pro-competitive 
technology  transfer  agreements  – especially  in  early licensing  scenarios  – this  option  could 
enhance  licensors’  ability to  recoup their R&D  investments. This  should in  turn incentivise 
further  R&D,  fostering  additional  innovation.  At  the  same  time,  licensees  may  improve  or 
adapt  the  licensed  technology  (follow-on  innovation)182.  Together,  these  effects  strengthen 
the  capacity  of  businesses  to  innovate,  and  can  be  expected  to  contribute  to  overall 
technological  progress183.  Since  innovation  is  a  key  driver  of  productivity,  higher  levels  of 
innovation can also indirectly support competitiveness, for example through improvements in 
businesses’ efficiency and cost structures. 

Regarding  other  dimensions  of  competitiveness:  licensing  can  reduce  licensees’  production 
costs184  and,  more  broadly,  increase  industry-wide  productive  efficiency,  especially  when 
technology transfer allows production and sales to be undertaken by the firm with the lowest 
cost  and/or  greatest  production  expertise185.  This  enhances  cost  competitiveness  and, 
depending  on  various  factors,  may  also  improve  price  competitiveness.  Additionally,  an 
increase  in  technology  transfer  agreements  could  facilitate  market  entry  and  intensify 
competition  in  product  markets.  By  enabling  a  licensee  to  use  a  technology  that  it  was 
incapable of developing  internally, a technology  transfer agreement may  allow it to  enter a 
market that it would not otherwise been able to access186.  

180  See, for example, the judgment of the Court of Justice  of 26 February 2026 in  C-367/22 P, Air Canada v 

Commission, EU:C:2026:116, paragraph 60.   

181  See, for example, Hellwig, M. and Hüschelrath, K., Cartel Cases and the Cartel Enforcement Process in the 
European  Union 
at 
2015.  A  Quantitative  Assessment, 
https://www.econstor.eu/bitstream/10419/146903/1/869752421.pdf (assessing the cartel cases decided by the 
European Commission between 2001 and 2015 and showing that the vast majority of firms in these cases 
were European).   

available 

15-17, 

2001 

pp. 

– 

182  See,  for  example,  Chemmanur,  T.J.,  Chen,  X.  and  Zhang,,  J.,  The  Economics  of  Patent  Licensing:  An 
Empirical Analysis of the Determinants and Consequences of Patent Licensing Transactions, 2024, available 
at https://afajof.org/management/viewp.php?n=133532. 

183  See Jeong, S. and Lee, S., ‘Strategic timing of academic commercialism: evidence from technology transfer’, 
Journal of Technology Transfer, 40, 2015,  p.  911; Allain, M., Emeric, H.  and Kyle,  M., ‘Inefficiencies in 
Technology Transfer: Theory and Empirics’ (January 2011). CEPR Discussion Paper No. DP8206, available 
at SSRN: https://ssrn.com/abstract=1749847. 

184  Depending  on  the  type  of  technology  licensed  (for  example,  an  industrial  process  to  streamline  the 
production of a certain product), a technology transfer agreement can result in a reduction of the licensee’s 
production  costs.  See,  for  example,  Katz,  M.L.  and  Shapiro,  C.,  ‘On  the  licensing  of  innovations’,  The 
RAND Journal of Economics, 16, 4, 1985,  pp. 504-520 (emphasising that this could lead to an increase in 
industry output).   

185  See,  for  example,  Régibeau,  P.  and  Rockett,  P.,  Assessment  of  Potential  Anticompetitive  Conduct  in  the 
Field of Intellectual Property Rights and Assessment of the Interplay Between Competition Policy and IPR 
Protection, Publications Office of the European Union, 2011, p. 11.  

186  See, for example, Arora, A. and Gambardella, A., ‘Ideas for rent: an overview of markers for technology’, 

Industrial and Corporate Change, 19, 3, 2010, p. 792. 

43 

 
 
Option 2 would, on balance, have a neutral or potentially negative effect on innovation and 
competitiveness. As noted above, it is likely to have a limited impact on businesses’ ability to 
assess  whether  their  technology  transfer  agreements  fall  within  the  block  exemption  and 
therefore is likely to generate only limited positive effects compared to Option 1. At the same 
time,  Option  2  could  have  (albeit  likely  limited)  negative  effects  by  block-exempting 
agreements whose restrictive effects are not counterbalanced by efficiencies. For instance, a 
technology  transfer  agreement  between  competitors  with  market  power  may  allow  them  to 
prevent  each  other  from  gaining  a  technological  lead.  While  this  may  increase  their  short-
term  profits,  it  could  also  reduce  their  incentives  to  innovate,  by  reducing  competitive 
pressure187.  

The  impacts  of  both  options  on  the  competitiveness  of  SMEs  would  be  consistent  with  the 
general impacts outlined above188.  

6.2.  Data licensing  

6.2.1.  Impact on competition in the market 

The  Expert  Report  on  Data  Licensing  confirmed  the  pro-competitive  potential  of  data 
licensing.  According  to  the  report,  data  licensing  frequently  amounts  to  a  collaborative 
business  strategy  which  combines  the  parties’  resources.  It  can  generate  products  which 
would not reach the market in its absence, for example because the licensor does not have the 
resources  necessary  for  commercialisation189.  Data  licensing  also  incentivises  licensors,  by 
providing  monetary  returns  for  their  out-licensing,  and  helps  to  disperse  exclusive  data 
control, so that additional players can realise the potential of the data190.  

This  was  confirmed  by  the  large  majority  of  stakeholders  responding  to  the  impact 
assessment questionnaire. Around 60% of stakeholders indicated that data licensing generally 
creates more pro-competitive than anti-competitive effects191, while 30% of them answered 
that  data  licensing  generates  only  pro-competitive  effects192.  The  pro-competitive  effects 
identified by stakeholders include the creation of products  of higher quality  by the licensee 
thanks to the licensed data, but also lower costs and faster market entry193. 

While  data  licensing  agreements  can  be  considered  overall  pro-competitive,  the  use  of 
restrictions within such agreements  can produce  anti-competitive effects.  For example,  data 

187  This  could  be  the  case  for  instance  of  a  licensing  agreement  between  competitors  with  market  power, 
whereby  they  cross-license  each  other  their  competing  technologies  and  impose  reciprocal  obligations  to 
provide  each  other  with  future  improvements  of  their  respective  technologies.  Likewise,  a  technology 
transfer  agreement  between  non-competitors  –  where  the  licensor  has  market  power  –  may  enable  the 
licensor to foreclose competing licensors.  

188  With  the  possible  difference  that  SMEs,  due  to  their  generally  weaker  bargaining  position,  may  be  more 
exposed than other businesses to the imposition of restrictions with potential anti-competitive effects, which 
could negatively affect their overall competitiveness.   
189  See the Expert Report on Data Licensing, Section 5.01. 
190  See the Expert Report on Data Licensing, Section 5.01. 
191  This group of stakeholders included 3 businesses, 3 associations, 1 academic/research institution and 1 other. 
192  All of these stakeholders were businesses. 
193  This  was  confirmed  by  the  feedback  received  from  stakeholders  in  response  to  Q  2.11  to  Q  2.14  of  the 

impact assessment public consultation questionnaire. 

44 

 
 
licensing  can  be  used  by  competitors  to  exchange  commercially  sensitive  information  and 
thereby collude in the market where they compete. Moreover, exclusive or selective licensing 
may  foreclose  firms  that  do  not  have  access  to  the  data,  preventing  them  from  competing 
effectively on the market194. 

The effects on competition described above are valid for data licensing in all sectors of the 
economy. Pro-competitive effects are more prominent where the in-licensing of data relates 
to technologies in less advanced stages, where access to external data is more likely to have a 
bigger impact195 (see also Section 6.2.3 below). 

Option  1  (updating  the  current  framework  to  clarify  when  a  data  licensing  agreement  can 
benefit  from  the  block  exemption  provided  by  the  TTBER)  would  have  a  limited  positive 
impact on competition.  Option 1 would make clear to businesses that the licensing of some 
types of data can benefit from block exemption, provided that the conditions of the TTBER 
(market share thresholds and absence of hardcore restrictions) are respected.  

This  additional  legal  certainty  would  make it more attractive to  license  these  types of data. 
The additional licensing can produce the pro-competitive effects described above. That said, 
the positive impact on competition of Option 1 would be limited in scope, as it would only 
cover those licensing agreements under which the licensed data falls within the definition of 
one of the technology rights already covered by the TTBER196. 

Option 2 would also have a positive impact on competition by providing legal certainty, not 
only for the types of data licensing covered by Option 1, but also for the licensing of certain 
types of data that are not covered by the TTBER (see Section 5.2.2 for more details on the 
content of Option 2). 

This legal certainty can be expected to lead to an increase in the licensing of this type of data, 
which would have an overall positive impact on competition in the market (see above).  

On  the  other  hand,  it  cannot  be  excluded  that  certain  restrictions  in  agreements  for  the 
licensing of data not covered by the TTBER (i.e. those data covered by Option 2 but not by 
Option  1)  may  have  different  or  more  significant  negative  impacts  on  competition  than the 
restrictions commonly found in agreements covered by the TTBER. That said, any risk of a 
negative impact on competition from Option 2 seems limited. First, the additional guidance 
that would be provided  under Option 2 would focus on databases protected by copyright or 
by the database sui generis right (i.e. protected by IP rights). According to the Expert Report 
on Data Licensing, the licensing of data protected by an IP right tends to be particularly pro-
competitive  because  it  overcomes  the  strong  usage  restriction  created  by  the  IP  right197. 
Second,  the  vast  majority  of  respondents  to  the  relevant  question  in  the  impact  assessment 

194  See the Expert Report on Data Licensing, paragraph 292. 
195  See the Expert Report on Data Licensing, paragraph 308. 
196  As explained in Section 5.03(a)(i) of the Expert Report on Data Licensing, data can be covered by a variety 
of legal rights and protections. Data licensing agreements therefore often concern data that is not protected 
by a technology right covered by the TTBER but by other types of legal rights. 

197  See the Expert Report on Data Licensing, paragraph 304. 

45 

 
 
public  consultation  confirmed  that  providing  guidance  on  data  licensing  would  have  a 
positive impact on competition in the market198. 

Moreover, it can be expected that the positive impact of Option 2 would be more significant 
than the impact of Option 1. This is because the additional guidance that would be provided 
under Option 2 would inevitably cover the licensing of more types of data and, therefore,  a 
higher number of data licensing agreements199. 

6.2.2.   Impact on businesses (including SMEs) 

Option  1  would  reduce  the  compliance  assessment  costs  of  businesses  that  enter  into 
agreements for the licensing of data that qualifies as a technology right (including know-how) 
as  defined  in  the  TTBER.  For  those  agreements,  it  would  become  clear  that  assessing 
compliance with Article 101 can be based on the (simplified framework of the) TTBER and 
the Guidelines.  

As  mentioned  above,  the  ability  to  use  the  TTBER  and  the  Guidelines  to  assess  the 
compliance  of  an  agreement  with  Article  101 TFEU  reduces  those  compliance  assessment 
costs  by  an  average  of  33%,  compared  with  a  situation  in  which  the  assessment  has  to  be 
performed solely on the basis of Article 101 TFEU and the case law (see Section 2.3 above). 
On this basis, it is estimated that Option 1 would, on average, reduce the costs for assessing 
compliance with competition law by approximately EUR 1,848 per agreement200. However, 
this  reduction  of  compliance  costs  would  apply  only  to  the  data  licensing  agreements  that 
concern data that qualifies as know-how or another technology right covered by the TTBER. 
There is no reliable data on how many of these data licensing agreements exist on the market. 
Based on an estimation that these agreements represent around 20% of the total population of 
relevant  data  licensing  agreements  (namely,  bilateral  data  licensing  agreements  for 
production  purposes),  the  aggregate  annual  savings  in  compliance  assessment  costs  would 
amount to between EUR 369,600 and EUR 3,696,000201. 

198  This in particular resulted from the feedback provided by stakeholders in response to Q 2.23 of the impact 
assessment public consultation questionnaire. Moreover, almost all the stakeholders that provided feedback 
on the draft rules on data licensing during the public consultation on the draft Guidelines were favourable to 
the provision of guidance on data licensing.  

199  This is a consequence of the fact that, as explained in footnote 196 above, data may be protected by various 
types of legal rights. The greater the range of legal rights in data that are included in the framework provided 
by the TTBER and Guidelines, the greater the number of data licensing agreements that will be covered by 
that  framework;  see  the  Expert  Report  on  Data  Licensing,  paragraph  324.  That  said,  even  the  guidance 
foreseen under Option 2 would not cover all data licensing agreements, as explained above in footnotes 150 
and 152 when presenting the Options. 

200  This estimate reflects the most conservative scenario,  where  firms are completely uncertain about  whether 

data licensing is already covered by the TTBER.  

201 As explained above in Section 2.3, it was not possible to obtain reliable data on the population of bilateral 
data  licensing  agreements  for  production  purposes  entered  into  each  year  in  the  Union.  On  the  basis  of 
publicly available data, the number of these agreements was estimated in Section 2.3 above to be in the order 
of a few thousand, in particular between 1,000 and 10,000. Assuming that 20% of those agreements concern 
data that qualifies as know-how or another technology right covered by the TTBER, the population of this 
latter  type  of  agreements  can  be  estimated  at  between  200  and  2000.  By  multiplying  these  numbers  by 
EUR 1,848  (the  estimated  average  saving  per  agreement),  the  aggregate  savings  can  be  estimated  in  the 
range EUR 369,600 to EUR 3,696,000.   

46 

 
 
Under  Option  2,  the  reduction  of  compliance  costs  would  remain  the  same  for  the 
agreements  covered  by  the  guidance  under  Option  1.  However,  the  additional  guidance 
provided  under  Option  2  for  licensing  agreements  concerning  databases  protected  by 
copyright  or  the  database  sui generis  right  would  reduce  the  compliance  costs  also  for  this 
type of agreements. As for the agreements covered under Option 1, no available data exist on 
their population. Estimating that these agreements account for an additional 20% of the total 
population of relevant data licensing agreements (namely, bilateral data licensing agreements 
for production purposes),  in  addition  to  the agreements covered by Option  1, the aggregate 
annual  savings  in  compliance  assessment  costs  under  Option  2  are  estimated  to  range 
between EUR 739,200 and EUR 7,392,000202.  

Both  options  may  also  incentivise  businesses  to  enter  into  additional  data  licensing 
agreements, thereby increasing their revenue as licensors or gaining access to valuable data as 
licensees. 

The  above-mentioned  reduction  in  compliance  costs  would  apply  also  to  SMEs,  which  are 
subject to the same obligation to assess the compliance of their agreements with competition 
law. The estimated cost savings would have a proportionately greater impact on SMEs than 
on  larger  businesses,  as  SMEs  typically  have  less  resources  to  devote  to  compliance 
assessments203. 

6.2.3.  Impact on European innovation and competitiveness 

Both  Option  1  and  Option  2  would  have  a  positive  (indirect)  impact  on  innovation  and 
competitiveness, by making it easier for business to enter into pro-competitive data licensing 
agreements.  Overall,  Option  2  would  have  a  stronger  positive  impact  on  innovation  and 
competitiveness,  given  that  it  would  provide  guidance  in  relation  to  more  types  of  data 
licensing agreements. 

As explained in Section 1.1 above, data is an essential resource for innovation. An increase in 
the  number  of  data  licensing  agreements  would  enable  licensees  to  produce  better,  more 
innovative  products,  especially  in  frontier  and  technology-intensive  sectors,  such  as  AI204. 

202  If 20% of the relevant population of data licensing agreements is assumed to concern databases protected by 
copyright or the database sui generis right, the population of this latter type of agreements can be estimated 
in the range between 200 and 2000. Given that the guidance to be provided under Option 2 is incremental 
and includes the guidance to be provided under Option 1, the number of these agreements should be added to 
the number of agreements covered by the guidance under Option 1. This means that the relevant population 
of agreements affected by the guidance provided under Option 2 can be estimated in the range between 400 
and  4000  (see  footnote  201  above).  By  multiplying  these  numbers  by  EUR  1,848  (the  estimated  average 
saving  per  agreement),  the  aggregate  savings  can  be  estimated  in  the  range  of  EUR  739,200  to 
EUR 7,392,000.   

203  For example, in the impact assessment public consultation an association representing licensing executives 
stated that additional legal certainty on the competition law assessment of data licensing agreements would 
benefit  all  undertakings,  but  especially  SMEs  investing  in  new  technologies  and  services  based  on  data 
sharing. See also the Expert Report on Data Licensing, which states at paragraph 32 that legal uncertainty on 
the application of Article 101 to data licensing agreements “is especially problematic for small and medium-
sized  enterprises  (SMEs)  and  research  institutions,  which  often  lack  the  resources  to  navigate  complex 
compliance assessments in the absence of clear regulatory orientation”. 

204  Mitchell, J. et al., Measuring the economic value of data (2021), OECD Going Digital Toolkit Notes, No. 20, 

OECD Publishing, Paris, https://doi.org/10.1787/f46b3691-en. 

47 

 
 
Moreover, if the data is licensed to a licensee that will use the data for creating a new value 
chain, it can spark disruptive innovation205. Also, an increase in remuneration for data holders 
from  their  licensing  activities  would  in  turn  raise  the  incentives  to  gather  and/or  license 
additional data, thereby creating positive feedback loops.  

As  regards  other  dimensions  of  competitiveness,  improved  products  would  help  European 
business  to  be  more  competitive  on  the  global  stage  and  improve  their  international 
competitiveness.  Regarding  artificial  intelligence  in  particular,  the  availability  of  data  is 
crucial to allow the development of competitive AI products. Additional data licensing would 
therefore strengthen the competitiveness of businesses in vital sectors of the EU economy.  

The  impact  on  SME  competitiveness  will  be  in  line  with  the  impact  on  competitiveness  of 
larger businesses. 

6.3.  Licensing negotiation groups 

6.3.1.  Impact on competition in the market 

Option  1  (providing  guidance  on  the  competition  law  assessment  of  LNGs)  would  have  a 
neutral or positive impact on competition206. 

First, by identifying the competition concerns that LNGs can raise, the guidance would serve 
as  a  warning  to  businesses  not  to  engage  in  anti-competitive  LNGs.  Compared  to  the 
baseline, this option should therefore reduce the risk that LNGs will be set up and operated in 
a  manner  which  infringes  Article 101 TFEU.  The  stakeholder  feedback  to  the  impact 
assessment public consultation and the public consultation on the draft revised texts identified 
several such competition concerns, in particular collusion between competing implementers 
in downstream product markets and the exercise of excessive buyer power (including through 
coordinated  hold-outs207),  resulting  in  sub-competitive  royalty  rates  and  reduced  incentives 
for technology owners to invest in R&D208. Concretely, collusion between implementers on 
downstream  product  markets  can  be  expected  to  have  a  negative  impact  on  the  quality, 
variety and price of the products offered to consumers. Likewise, reductions in investment in 
R&D  can  be  expected  to  diminish  the  intensity  of  competition  in  innovation,  which 
ultimately  also  has  a  negative  impact  on  the  quality  and  variety  of  products  offered  to 
consumers, as well as on the efficiency and cost of manufacturing processes.  

Second, by increasing legal certainty regarding the application of Article 101 TFEU to LNGs, 
this option should lead to the establishment of a greater number of neutral or pro-competitive 
LNGs than would be the case under the baseline. The consultation activities identified several 

205 See the Expert Report on Data Licensing, para. 283. 
206  The  fact  that  there  are  currently  no  LNGs  operating  on  the  market  reduces  the  level  of  certainty  of  the 

impacts foreseen for LNGs. 

207  Unreasonable delays or refusals by implementers to take a licence of the technology. 
208  Stakeholder feedback (see Annex 2, Sections 2.1(iii), 2.2 and 2.3), from technology owners, pointed to risks 
of collusion between implementers and the exercise of excessive buyer power. These concerns are primarily 
based  on  qualitative  submissions  rather  than  observed  market  practices,  given  that  the  Commission  is  not 
aware of any LNGs that are operating in the market.  

48 

 
 
possible  pro-competitive  effects  of  LNGs209.  First,  LNGs  can  reduce  licensing  transaction 
costs,  by  reducing  the  number  of  bilateral  licence  negotiations.  Second,  they  can  promote 
more informed and balanced negotiations, through the pooling of implementer expertise, in 
particular regarding the validity and essentiality of the rights being licensed210. According to 
technology  implementers,  more  balanced  negotiations  are  likely  to  lead  to  fairer  licensing 
terms.  Both  of  these  effects  can  help  technology  owners  and  technology  implementers  to 
compete  more  strongly  on  their  respective  markets.  For  example,  lower  transaction  costs 
enable both  owners and implementers to  divert  resources  to  more productive activities, and 
fairer  licence  terms  can  lead  to  increased  uptake  of  technology  licences,  thereby  increasing 
the royalty revenues of technology owners.  

Under this option, the guidance would not contain a soft safe harbour (i.e. a presumption of 
compliance  with  Article 101 TFEU).  The  Commission’s  ability  to  intervene  against  anti-
competitive LNGs would therefore be preserved. This consideration is particularly relevant in 
view of the novelty of LNGs and the lack of enforcement experience.  

Option 2 (providing guidance on LNGs, including a soft safe harbour) would have a neutral 
impact  on  competition.  The  soft  safe  harbour  would  increase  legal  certainty  for  businesses 
and  make  their  compliance  assessments  easier:  to  ensure  compliance  they  could  choose  to 
simply design their LNG in accordance with the soft safe harbour’s conditions. Option 2 can 
therefore  be  expected  to  lead  to  the  establishment  of  more  LNGs  than  would  be  the  case 
under Option 1. Provided the guidance and the soft safe harbour are formulated appropriately, 
this option therefore increases the likelihood that LNGs will be set up which generate the pro-
competitive effects described under Option 1211. 

On the other hand, a soft  safe harbour creates an expectation  that the Commission  will not 
intervene  against  businesses  that  comply  with  the  safe  harbour’s  conditions.  This  option 
would  therefore  limit  the  Commission’s  ability  to  intervene  against  LNGs  that  harm 
competition despite falling within the soft safe harbour. Although  the conditions of the soft 
safe  harbour  would  be  formulated  cautiously,  given  the  novelty  of  LNGs  and  the  lack  of 
enforcement  experience,  it  cannot  be  excluded  that  they  may  fail  to  address  certain 
competition  concerns212.  By  limiting  the  Commission’s  ability  to  take  enforcement  action, 
this option could have a negative impact on competition. 

Option 2 could lead to a second type of negative impact for competition. Due to the lack of 
enforcement experience in relation to LNGs, there is a risk that the conditions of the soft safe 

209  See  Annex  2  for  the  feedback  to  the  public  consultation  questionnaire  and  the  consultation  on  the  draft 

revised texts. 

to 

210  See  the  report  by  the  Group  of  Experts  on  Licensing  and  Valuation  of  Standard  Essential  Patents 
here: 
‘Contribution 
SEPs’ 
https://ec.europa.eu/docsroom/documents/45217.  See  also  R. Peters,  I.  Nikolic  and  B.  Heiden,  Designing 
SEP  Licensing  Negotiation  Groups  to  Reduce  Patent  Holdout  in  5G/IoT  Markets,  Cambridge  University 
Press  (2023),  which  concludes  that  “LNGs  can  facilitate  SEP  licensing  efficiencies  through  reduced 
transaction costs for both licensees and licensors”. 

the  Debate 

available 

Proposal 

(2021), 

75, 

on 

211  In  the  public  consultation  on  the  draft  revised  texts,  technology  implementers  (businesses  and  business 
associations) supported the proposed soft safe harbour, whereas technology owners (businesses and business 
associations) opposed it. See Annex 2, Section 2.2 for the results of the consultation. 

212  Technology owners (businesses) highlighted this possibility in their responses to the public consultation on 

the draft revised texts; see Annex 2, Section 2.2.  

49 

 
 
harbour  may  be  formulated  too  strictly  or  prescriptively,  making  them  ill-adapted  to 
businesses’ needs or unworkable in practice. This would reduce the uptake and effectiveness 
of  LNGs  and  thus  their  potential  to  generate  the  pro-competitive  effects  mentioned  under 
Option 1.   

6.3.2.  Impact on businesses (including SMEs) 

Option  1  would  reduce  the  cost  for  businesses  of  assessing  the  compliance  of  LNGs  with 
Article 101  TFEU.  The  Evaluation  Support  Study  and  the  survey  conducted  at  the  reality 
check  workshop  show  that  providing  specific  rules  or  guidance  on  technology  transfer 
agreements 
the  TTBER  and  Guidelines  reduces  compliance  assessment  costs 
in 
significantly213. 

In addition to this direct impact on compliance assessment costs, the increased legal certainty 
resulting  from  the  new  guidance  on  LNGs  makes  it  more  likely  that  businesses  will  set  up 
LNGs  that  have  competition-neutral  or  pro-competitive  effects.  As  stated  in  Section 6.3.1 
above,  the  possible  pro-competitive  effects  of  LNGs  include  reduced  licensing  transaction 
costs, for both technology owners and technology implementers.   

Option  2  would  reduce  businesses’  compliance  assessment  costs  to  a  greater  extent  than 
Option 1,  as  businesses  could  ensure  their  compliance  with  Article 101 TFEU  simply  by 
designing their LNGs in accordance with the conditions of the soft safe harbour.  

The  indirect  positive  impact  on  businesses’  licensing  transaction  costs  mentioned  under 
Option 1 can also be expected to apply under this option. 

The cost reductions under both options would also apply to SMEs. As set out in Section 2.3 
and  footnote 108  above,  significant  numbers  of  SMEs  are  either  potential  implementers  of 
SEPs or actually  conclude SEP licences each year. Moreover, in  the public consultation  on 
the draft revised rules, both technology owners and implementers stated that LNGs could be 
particularly useful for SME implementers, as they may not have the resources or expertise to 
negotiate fair licensing terms for their business214.   

6.3.3.  Impact on European innovation and competitiveness 

Option 1 would have a neutral or positive indirect impact on innovation and competitiveness. 
As stated in Section 6.3.1 above, this option would make it easier for businesses to assess the 
compliance  of  LNGs  with  Article 101  TFEU  and  can  therefore  be  expected  to  lead  to  the 
formation  of  more  LNGs  that  are  either  competition-neutral  or  pro-competitive  than  would 
otherwise  be  the  case.  As  also  explained  in  Section 6.3.1,  where  LNGs  result  in  agreed 
licensing  terms,  this  can  create  benefits  both  for  technology  owners  and  implementers. 
Reduced  transaction  costs  enable  both  sides  to  divert  resources  to  other  business  activities, 
for example further R&D in the case of technology owners and product development in the 
case of implementers.  Increased licence uptake and fairer licensing terms also  contribute  to 
the competitiveness of both stakeholder groups.  

213  See the Evaluation Support Study, pp 91-93 and Annex 2, Section 2.3. 
214  See Annex 2, Section 2.2. 

50 

 
 
On the other hand, the novelty of LNGs and the lack of enforcement experience creates a risk 
that  they  may  produce  anti-competitive  effects,  despite  the  provision  of  guidance.  In  the 
impact  assessment  public  consultation  and  the  consultation  on  the  draft  revised  texts, 
technology  owners  referred  notably  to  the  possibility  that  LNGs  may  lead  to  coordinated 
hold-outs215. In that case, technology owners’ incentives to invest in further innovation could 
be negatively impacted.   

Given that LNGs are a new practice, it is not yet clear whether they will be widely used. The 
scale  of  the  above  impacts  on  innovation  and  competitiveness  therefore  remains  uncertain. 
See  Section  2.1  (Problem 3)  for  an  indication  of  the  types  of  sectors  in  which  technology 
implementers may wish to form LNGs. 

Option 2 would have similar neutral or positive effects on innovation and competitiveness. 
The inclusion of a soft safe harbour in the guidance can be expected to lead the formation of 
more  LNGs  than  under  Option 1,  which  in  turn  increases  the  potential  for  the  positive 
impacts on innovation and competitiveness mentioned under that option. On the other hand, 
this  option  would  limit  the  Commission’s  ability  to  intervene  against  LNGs  which  comply 
with the conditions of the soft safe harbour but nonetheless lead to anti-competitive effects, 
including  negative  impacts  on  innovation,  for  example  through  the  exercise  of  excessive 
buyer power. 

The  impacts  of  both  options  on  the  competitiveness  of  SMEs  would  be  consistent  with  the 
general impacts outlined above.   

7.  HOW DO THE OPTIONS COMPARE AND PREFERRED OPTIONS 

This  section  compares  the  policy  options  between  themselves  and  against  the  baseline 
scenario  as  regards  their  effectiveness,  efficiency  and  coherence,  and  concludes  on  the 
preferred option for each area of the rules, also taking into account their impacts.  

To  compare  the  effectiveness  of  the  policy  options,  we  assess  their  ability  to  achieve  the 
specific  objectives  of  the  initiative  in  relation  to  the  problem  concerned  (see  Section 4.2 
above), as well as the general objective of the TTBER and Guidelines, namely to ensure the 
effective protection of competition.  

To  assess  the  efficiency  of  the  policy  options,  we  look  at  how  they  will  affect  the  costs 
incurred by businesses to assess the compliance of their agreements with Article 101 TFEU. 
These costs generally include the fees of external advisers (lawyers and economists), as well 
as the cost of internal legal advice. 

As  regards  coherence,  we  assess  the  policy  options  against  other  Commission  rules  and 
guidance on the application of Article 101  TFEU, as well as other EU legislation in related 
fields. 

215 See Annex 2, Sections 2.1 (iii) and 2.2. 

51 

 
 
7.1.  The TTBER’s market share thresholds for technology markets 

7.1.1.  Effectiveness 

The  effectiveness  of  each  option  is  assessed  against  its  ability  to  achieve  the  specific 
objective  of  reducing  the  complexity  faced  by  businesses  when  they  apply  the  TTBER’s 
market share thresholds for technology markets, as well as the general objective of ensuring 
the effective protection of competition, in particular by exempting only those agreements can 
be  assumed  to  meet  the  conditions  of  Article  101(3)  TFEU.  Exempting  agreements  that 
cannot  be  assumed  to  meet  those  conditions  –  and  therefore  whose  efficiencies  cannot  be 
assumed  to  outweigh  their  anti-competitive  effects  –  would  hinder  the  Commission,  NCAs 
and  national  courts  from  enforcing  Article 101 TFEU,  creating  a  risk  of  under-
enforcement216.   

Compared  to  the  baseline,  both  options  would  simplify  the  application  of  the  market  share 
thresholds  for  technology  markets  and  increase  legal  certainty  for  businesses,  albeit  to 
different  degrees  and  in  different  market  contexts.  Option  1  would  introduce  targeted 
clarifications  and  amendments,  addressing  early  licensing  –  a  context  in  which  market 
definition  and  market  share  calculation  are  likely  to  be  more  complex  for  businesses. 
Specifically,  Option  1  would  enhance  legal  certainty  for  early  licensing  by  clarifying  that 
businesses  may  postpone  the  assessments  required  for  market  definition  and  market  share 
calculation for a number of years from the date of licensing and, by extending the duration of 
this  simplification.  Option  2  would  simplify  the  compliance  assessment  task  in  market 
contexts where there were at least three other substitutable technologies in addition to those 
controlled  by  the  parties.  In  that  scenario,  the  parties  would  have  legal  certainty  that  their 
agreement  fell  within  the  block  exemption,  without  the  need  to  calculate  market  shares. 
However, this option would also entail a substantial risk of block-exempting agreements with 
potential  anti-competitive  effects.  Accordingly,  any  combination  including  Option  2  would 
reduce the effectiveness of the TTBER and Guidelines in achieving the general objective of 
protecting competition.  

7.1.2.  Efficiency 

Compared to the baseline, all the options are likely to reduce the compliance assessment costs 
of  businesses  that  enter  into  technology  transfer  agreements.  However,  while  Option  1  is 
expected to generate a significant reduction in costs, the reduction associated with Option 2 is 
likely to be only marginal.  

7.1.3.  Coherence 

None  of  the  options  would  affect  the  coherence  of  the  TTBER  and  Guidelines  with  other 
Commission  rules  or  guidance  on  the  application  of  Article 101 TFEU,  as  the  changes 
introduced would not conflict with those rules and guidance. Furthermore, since the options 

216  Widening  the  safe  harbour  too  far  would  be  problematic,  as  the  Enabling  Regulation  only  empowers  the 
Commission  to  block-exempt  agreements  for  which  it  can  be  assumed  that  the  conditions  of 
Article 101 (3) TFEU are fulfilled. Moreover, block-exempting agreements that do not meet the conditions 
of  Article 101(3)  could  lead  to  distortions  of  competition  and  negative  impacts  for  businesses  and 
consumers. 

52 

 
 
concern only the application of the TTBER’s market share thresholds (which define the scope 
of the block exemption), they would not affect the coherence of the TTBER and Guidelines 
with other EU legislation relevant to technology transfer agreements. 

Option  1  also  complements  EU  strategies  to  facilitate  knowledge  valorisation  by  public 
research organisations217 and to enable start-ups to better capitalise on new opportunities218, 
primarily by simplifying the application of the TTBER’s market share thresholds in scenarios 
of early licensing.  

7.1.4.  Preferred option  

In view of the above, the preferred option regarding the TTBER’s market share thresholds for 
technology  markets  is  Option  1.  This  option  is  the  most  effective  at  simplifying  the 
application of the existing rules while avoiding the risk of under-enforcement. It also reduces 
compliance  costs  for  businesses  and  ensures  coherence  with  other  relevant  EU  legislation. 
Option 1 would also have an overall positive impact on competition, since it provides  more 
legal  certainty  for  businesses  –  especially  in  the  context  of  early  licensing  –  and  thereby 
incentivises  them  to  enter  into  pro-competitive  technology  transfer  agreements.  This 
combination  would  also  have  a  positive  impact  on  businesses,  including  SMEs,  and  an 
indirect positive impact on innovation and competitiveness.   

Effectiveness 

Efficiency 

Coherence 

Legal certainty 

Protecting competition 

Option 1 

Option 2 

+ 

+ 

+ 

− 

+ 

+ 

0 

0 

7.2.  Data licensing 

7.2.1.  Effectiveness 

The  effectiveness  of  each  option  is  assessed  against  its  ability  to  achieve  the  specific 
objective of facilitating the assessment of data licensing agreements under Article 101 TFEU, 
as  well  as  the  general  objective  of  ensuring  the  effective  protection  of  competition  by 
minimising the risk of under-enforcement.  

Compared to the baseline (no guidance), both options would provide guidance to businesses 
active  in  data  licensing,  albeit  to  different  degrees,  and  therefore  would  be  effective  in 
achieving the specific objective. Under Option 1, the guidance would cover only agreements 
for the licensing of data that falls within the definitions of technology rights (including know-
how)  already  covered  by  the  TTBER.  Under  Option  2,  the  guidance  would  also  cover  the 
licensing of databases covered by copyright or the database sui generis right. 

217  Council  Recommendation  (EU)  2022/2415  of  2  December  2022  on  the  guiding  principles  for  knowledge 

valorisation, ST/14448/2022/INIT, OJ L 317, 9.12.2022, pp. 141–148. 

218  Communication from the Commission to the European Parliament, the Council, the European Economic and 
Social Committee and the Committee of Regions, The EU Startup and Scaleup Strategy Choose Europe to 
start and scale, COM/2025/270 final, 28.5.2025. 

53 

 
 
 
 
 
 
 
As  regards  the  general  objective  of  protecting  competition,  Option  1  would  be  safer,  as  it 
would be limited to the licensing of data that already qualifies as a technology right or know-
how  under  the  TTBER.  These  data  licensing  agreements  are  less  likely  to  produce  anti-
competitive effects  on the market. By contrast, the  pro-competitive nature of the  additional 
data licensing agreements that would be covered by the guidance provided under Option 2 is 
more untested, given the lack of enforcement experience and the fast-evolving nature of data 
licensing.  That  said,  stakeholders,  the  academic  literature  and  the  Expert  Report  on  Data 
Licensing all confirmed the generally pro-competitive nature of data licensing. Moreover, the 
risk that positive guidance is provided in respect of anti-competitive agreements is limited by 
the  fact  that  such  guidance  would  focus  on  the  licensing  of  those  types  of  data  (databases 
protected by copyright  or the database sui  generis  right) that  most resemble the technology 
rights already covered by the TTBER. 

Overall,  Option  2  would  go  further  in  achieving  the  specific  objective  of  facilitating  the 
assessment of data licensing agreements under Article 101 TFEU. On the other hand, there is 
a  possibility  that  Option  2  could  be  less  effective  than  Option 1  in  achieving  the  general 
objective of protecting competition. However, provided the guidance is carefully formulated, 
this risk appears small. 

7.2.2.  Efficiency 

Compared to  the baseline,  both options  are likely to  reduce costs for businesses  wishing to 
enter  into  data  licensing  agreements,  as  the  additional  guidance  would  reduce  the  cost  of 
assessing the compliance of agreements with Article 101 TFEU. Given that Option 2 would 
provide  guidance  for  more  types  of  data  licensing  agreement,  that  option  would  reduce 
compliance costs to a greater extent. 

7.2.3.  Coherence 

Neither  option  would  affect  the  coherence  of  the  TTBER  and  Guidelines  with  other 
Commission rules or guidance on the application of Article 101 TFEU, as the new guidance 
would not conflict with those rules and guidance.  

By  facilitating  pro-competitive  data  sharing,  both  options  would  be  coherent  with 
Commission’s strategy in relation to data219 and the primary legislation in this area (the Data 
Act).  

7.2.4.  Preferred option  

In view of the above, the preferred option for data licensing is Option 2. This option, which 
would provide more extensive guidance than Option 1, would be more effective in achieving 
the  specific  objective  of  facilitating  the  assessment  of  data  licensing  agreements  under 
Article 101 TFEU. It would also reduce businesses’ compliance assessment costs to a greater 
extent than Option 1. This  cost  reduction would  be particularly  beneficial for SMEs,  which 
often  do  not  have  a  large  budget  for  competition  law  assessments.  Lastly,  Option 2  would 

219  See  the  references  to  the  Communication  on  a  European  strategy  for  data  and  the  Communication  on  the 

Data Union Strategy in Section 1.4 above.  

54 

 
 
have an indirect positive impact on innovation and competitiveness, and is coherent with the 
Commission’s policy of promoting data sharing.  

Effectiveness 

Legal 
certainty 

Protecting 
competition 

+ 

++ 

+ 

+ 

Efficiency 

Coherence 

+ 

++ 

0 

0 

Option 1 

Option 2 

7.3.  Licensing negotiation groups 

7.3.1.  Effectiveness 

The  effectiveness  of  each  option  is  assessed  against  its  ability  to  achieve  the  specific 
objective  of  facilitating  the  assessment  of  LNGs  under  Article  101  TFEU,  as  well  as  the 
general objective of ensuring the effective protection of competition. 

As regards the specific objective, both options would be more effective than the baseline (no 
guidance).  By  including  a  soft  safe  harbour,  Option  2  would  make  the  guidance  more 
concrete  and  –  for  businesses  that  chose  to  design  their  LNGs  in  accordance  with  the  safe 
harbour – would provide a higher level of legal certainty.  

As regards the general objective of protecting competition, Option 1 would be effective, first, 
because the new guidance would warn businesses about the possible anti-competitive effects 
of  LNGs  and  indicate  measures  that  they  could  take  to  avoid  infringing  Article 101 TFEU. 
Second,  because  it  would  preserve  the  Commission's  ability  to  intervene  against  anti-
competitive LNGs. Option 2 would be less effective than Option 1 in achieving the general 
objective,  because  the  soft  safe  harbour  would  limit  the  Commission’s  ability  to  intervene 
against LNGs that fell within the soft safe harbour but nonetheless produced anti-competitive 
effects. Preserving the Commission’s ability to intervene is particularly important in relation 
to a novel type of agreement for which there is little enforcement experience. 

7.3.2.  Efficiency 

Compared  to  the  baseline,  both  options  would  reduce  the  compliance  assessment  costs  of 
businesses. Option 2 could reduce these costs more than Option 1, because businesses would 
be  able  to  ensure  compliance  with  Article  101 TFEU  simply  by  designing  their  LNGs  in 
accordance the conditions of the soft safe harbour.  

7.3.3.  Coherence 

Neither  option  would  affect  the  coherence  of  the  TTBER  and  the  Guidelines  with  other 
Commission rules or guidance on the application of Article 101 TFEU, as the new guidance 
would not conflict with those rules and guidance. Indeed, the new guidance on LNGs applies 
an  analytical  framework  that  is  similar  to  the  framework  used  in  the  guidance  on  joint 

55 

 
 
purchasing  in  Chapter 4  of  the  Commission’s  Horizontal  Guidelines220.  The  proposed 
guidance is also coherent with other relevant EU legislation.  

7.3.4.  Preferred option  

The preferred option for  licensing negotiation groups is  Option  1  (providing  new guidance 
on the competitive assessment of LNGs, without a soft safe harbour). This option is efficient, 
because it would reduce compliance assessment costs for businesses, and coherent with other 
Commission  rules  and  guidance  on  the  application  of  Article 101 TFEU  and  other  relevant 
EU legislation. This option is also effective because it provides guidance on the competition 
law assessment of  LNGs, thereby increasing  legal  certainty  for  businesses, while  achieving 
the general objective of ensuring the effective protection of competition. This option would 
also have neutral or positive impacts on competition in the market, on businesses (including 
SMEs) and on the dissemination of technology and innovation. 

Effectiveness 

Legal 
certainty 

Protecting 
competition 

+ 

++ 

++ 

− 

Efficiency 

Coherence 

+ 

++ 

0 

0 

Option 1 

Option 2 

7.4.  REFIT (simplification and improved efficiency) 

The  TTBER  is  a  block  exemption  regulation  and  therefore  a  simplification  tool,  as  block 
exemptions provide a simplified set of rules for businesses to assess the compliance of their 
agreements with Article 101 TFEU. The preferred policy options maintain the structure and 
analytical framework of the existing TTBER and Guidelines, including the TTBER’s market 
share thresholds and lists of hardcore and excluded restrictions, which are necessary to ensure 
that only agreements that fulfil the conditions of Article 101(3) TFEU are block-exempted. 

Against  the  baseline  of  the  current  TTBER  and  Guidelines,  the  preferred  policy  options 
introduce  revisions  that  simplify  the  practical  application  of  the  rules.  In  particular, 
simplification is achieved through clearer guidance on the application of the TTBER’s market 
share  thresholds  for  technology  markets,  together  with  a  one-year  extension  of  the  grace 
period,  which  reduces  the  need  for  early  and  repeated  calculations  of  market  shares.  In 
addition, new guidance  on data licensing and  LNGs addresses  two market  developments  in 
respect of which stakeholders reported legal uncertainty. This facilitates more straightforward 
compliance assessments in these areas.  

7.5.  Application of the ‘one in, one out’ approach  

This initiative does not create administrative costs for businesses or citizens. On the contrary, 
the  preferred  policy  options  are  expected  to  reduce  compliance  costs  for  businesses.  The 

220  Communication from the Commission – Guidelines on the applicability of Article 101 of the Treaty on the 
Functioning of the European Union to horizontal co-operation agreements, OJ C 259, 21.7.2023, pp. 1–125. 

56 

 
 
 
revisions update  and clarify  the existing  rules  while maintaining their  general structure  and 
analytical framework, and are expected to simplify businesses’ compliance assessments. The 
proposed new guidance on data licensing and LNGs does not create obligations. Its purpose 
is  to  help  businesses  to  assess  the  compliance  of  these  recent  types  of  agreements  with 
Article 101 TFEU. This promotes legal certainty and reduces complexity. 

The expected compliance cost reductions for businesses have been assessed and quantified to 
the extent possible in Sections 6.1.2, 6.2.2 and 6.3.2, as well as in Annex 3 of this report. 

8.  HOW WILL ACTUAL IMPACTS BE MONITORED AND EVALUATED? 

The revised rules are expected to remain in force for a period of 12 years. This duration will 
allow  the  Commission  to  gather  sufficient  experience  on  their  functioning.  It  also  ensures 
regulatory  stability  and  predictability  for  businesses,  also  taking  into  account  the  timing  of 
technology uptake.   

Before  the  expiry  of  the  TTBER  in  April  2038,  the  Commission  will  carry  out  a  full 
evaluation,  taking  into  account  the  results  of  the  monitoring  activities  set  out  below.  The 
Enabling Regulation also empowers the Commission to amend or repeal the TTBER before 
its expiry date if relevant circumstances change221. The mechanisms set out below will enable 
the Commission to establish whether any such changes occur.  

8.1.  Data collection  

Monitoring  will  primarily  assess  progress  toward  the  three  specific  objectives  of  the 
initiative, which operationalise the general objective set out in Section 4.1 of this report.  

Monitoring  will  rely  on  existing  channels  and  form  part  of  DG  Competition’s  usual  policy 
follow-up,  without  creating  new  reporting  obligations  for  the  Commission  or  stakeholders. 
Information  will  be  reviewed  on  an  ongoing  basis,  and  internal  stock-taking  may  be 
organised where meaningful evidence emerges.  

European Competition Network (“ECN”): regular exchanges with NCAs, including at the 
biannual meetings of the ECN Article 101 working group, allow the Commission to monitor 
how  the  revised  TTBER  and  Guidelines  are  applied  in  practice.  Although  the  evaluation 
showed  that  NCAs  have  had  limited  enforcement  experience  with  technology  transfer 
agreements in recent years, these exchanges will still help to identify issues arising at national 
level,  including  questions  of  interpretation  or  relevant  market  developments.  Where 
appropriate, these exchanges will be complemented by bilateral contacts on specific cases.  

Stakeholder  engagement:  the  Commission  will  continue  to  gather  information  through 
conferences,  meetings  and  informal  exchanges.  The  nature  and  recurrence  of  stakeholder 
questions  or  requests  for  guidance  under  the  Informal  Guidance  Notice  will  be  tracked 
internally. Monitoring will focus not only on the volume of such  requests, but also on their 
nature,  recurrence  and  evolution  over  time,  as  indirect  indicators  of  how  the  revised 

221  See Article 2(2) of the Enabling Regulation. 

57 

 
 
framework  is  used  in  practice.  A  reality  check  workshop  will  complement  continuous 
stakeholder engagement before the next evaluation. 

Enforcement  practice:  Although  enforcement  cases  in  the  area  of  technology  transfer  has 
been  limited  in  recent  years,  the  Commission  will  monitor  any  future  cases  at  Union  or 
national  level,  and  the  relevant  case  law.  Information  collected  will  be  used  to  assess  legal 
certainty and identify potential competition risks. 

Desk research and market monitoring: The Commission will continue to monitor available 
information and studies on technology licensing. This will help to identify market trends and 
serve  as  indirect  indicators  to  provide  context  for  issues  raised  by  stakeholders  and  assess 
whether the rules remain fit for purpose as technology markets evolve.  

8.2. 

Indicators and monitoring framework  

The  indicators  set  out  in  the  table  below  do  not  set  quantitative  targets.  They  will  be 
interpreted in the broader context of the Commission’s competition law enforcement practice, 
taking into account its decentralised nature and the fact that the TTBER and Guidelines are 
voluntary  tools  aimed  at  facilitating  businesses’  compliance  assessments.  Monitoring  will 
focus  on  developments  over  time,  in  particular  whether  the  revised  framework  facilitates 
compliance assessments by businesses under Article 101 TFEU in the areas identified in the 
evaluation. 

While  the  monitoring  indicators  are  mainly  about  outputs,  they  can  also  reflect  broader 
outcomes  without  creating  additional  administrative  burdens.  For  instance,  changes  in  the 
nature of stakeholder questions over time, such as fewer recurring issues indicating structural 
uncertainty and reliance on the revised framework, may serve as indicators of improved legal 
certainty. Where no or only limited issues are raised, this may also indicate that the revised 
framework  facilitates  compliance  assessments,  provided  this  is  corroborated  by  other 
monitoring sources. 

Progress will be assessed in comparison to the baseline set out by the evaluation findings and 
stakeholder feedback collected during the impact assessment phase. Success will be reflected 
in evidence that the recurring difficulties and legal uncertainty are largely resolved. A simple 
variation  in  the  number  of  questions  or  issues  reported  may  not  automatically  measure 
success.  This  is  because  it  could  also  be  influenced  by  other  factors  such  as  market 
developments or greater use of the revised framework.  

Objectives 

Indicators 

Input data 

Specific objective: 
Reduce the 
complexity for 
businesses of 
applying the 
TTBER’s market 
share thresholds for 

•  Nature and recurrence of 
problems reported by 
businesses in applying the 
TTBER’s market share 
thresholds in technology 
markets  

•  Nature and recurrence of 
clarification requests on 

Qualitative stakeholder 
feedback; issues raised in 
ECN discussions; relevant 
enforcement cases and case 
law  

Data sources / 
frequency 

ECN Article 101 
working group 
(biannual) and other 
ECN exchanges; 
stakeholder 
engagement on a 
continuous basis 
(conferences, bilateral 

58 

 
 
 
technology markets 

revised rules and guidance 
concerning market share 
thresholds for technology 
markets 

Specific objective: 
Facilitate  
businesses’  
assessment  of data 
licensing 
agreements under 
Article 101 TFEU 

Specific objective: 
Facilitate 
businesses’ 
assessment of LNGs 
under Article 101 
TFEU 

General objective: 
 Ensure adequate 
legal certainty and 
continued relevance 
of the TTBER and 
Guidelines in 
evolving technology 
markets   

•  Nature and recurrence of 
problems reported by 
businesses in assessing 
their data licensing 
agreements using the new 
guidance 

•  Nature and recurrence of 
clarification requests 
concerning the new 
guidance on data licensing 
•  Identification of potential 
competition concerns 
linked to data licensing in 
enforcement practice  

•  Nature and recurrence of 
problems reported by 
businesses in applying the 
new guidance on LNGs 
•  Nature and recurrence of 
clarification requests 
concerning the new 
guidance on LNGs 
•  Identification of pro- 
competitive and anti-
competitive LNGs in 
enforcement experience 

•  Nature and recurrence of 
uncertainty reported by 
businesses when assessing 
their technology-related 
agreements under 
Article 101 TFEU, relying 
on the revised TTBER and 
Guidelines 

•  Nature and recurrence of 
questions relating to new 
forms of licensing or 
market developments 

Qualitative stakeholder 
feedback; issues raised in 
ECN discussions; relevant 
enforcement cases and case 
law; market monitoring 

Qualitative stakeholder 
feedback; issues raised in 
ECN discussions; relevant 
enforcement cases and case 
law  

Qualitative stakeholder 
feedback 

meetings, clarification 
requests); reality check 
before next evaluation 

ECN Article 101 
working group 
(biannual) and other 
ECN exchanges; 
stakeholder 
engagement on a 
continuous basis 
(conferences, bilateral 
meetings, clarification 
requests); reality check 
before next evaluation 

ECN Article 101 
working group 
(biannual) and other 
ECN exchanges; 
stakeholder 
engagement on a 
continuous basis 
(conferences, bilateral 
meetings, clarification 
requests); reality check 
before next evaluation 

Stakeholder 
engagement on a 
continuous basis 
(conferences, bilateral 
meetings, clarification 
requests); reality check 
before next evaluation  

59 

 
8.3.  Limitations and proportionality 

As  outlined  in  this  report222,  it  is  not  feasible  to  define  fully  quantitative  or  direct  impact 
indicators for this initiative. The TTBER and Guidelines provide a voluntary framework for 
businesses to  assess  the compliance of their agreements with Article 101 TFEU and do not 
impose  obligations,  require  notifications  or  produce  data  that  would  allow  direct 
measurements of businesses’ behaviour, compliance costs or market outcomes, or to attribute 
them to the revised rules. 

In particular, the monitoring framework cannot directly measure pro-competitive benefits or 
anti-competitive  harm  in  quantitative  terms.  Any  effects  on  technology-  and  data  licensing 
depend on a wide range of factors that cannot be isolated and directly linked to this initiative. 

Therefore, the monitoring relies mainly on qualitative indicators and outcome proxies drawn 
from  existing  sources,  which  will  also  allow  the  Commission  to  identify  potential 
competition concerns or practices that require closer scrutiny. This approach is proportionate, 
avoids  additional  administrative  burdens  and  is  consistent  with  standard  practice  in 
competition  law  enforcement.  Further  quantitative  evidence  may  be  integrated  into  future 
monitoring if reliable and relevant data become available over time. 

222  See in particular Section 2 above. 

60 

 
 
 
ANNEX 1: PROCEDURAL INFORMATION 

1.  LEAD DG AND DECIDE PLANNING REFERENCES 

The Directorate-General for Competition of the European Commission ("DG Competition") 
is  the  lead  DG  for  the  revision  of  Commission  Regulation  (EU)  No  316/2014  of  21 March 
2014 on the application of Article 101(3) TFEU on the Functioning of the European Union to 
categories of technology transfer agreements and the Communication from the Commission - 
Guidelines on the application of Article 101 TFEU on the Functioning of the European Union 
to technology transfer agreements. 

The  review  was  registered  in  Decide  Planning  with  the  references  PLAN/2024/2700  and 
PLAN/2024/2701. 

2.  ORGANISATION AND TIMING 

The impact assessment phase was launched in January 2025, following the publication of the 
Evaluation  Report,  which  summarised  the  results  of  the  evaluation  of  the  TTBER  and 
Guidelines.  The  impact  assessment  was  carried  out  in  cooperation  with  other  interested 
Commission  services.  The  inter-service  steering  group  ("ISG")  set  up  for  that  purpose 
comprised representatives of Directorates-General AGRI, CLIMA, CNECT, DEFIS, ECFIN, 
ENER, ENV, FISMA, GROW, JUST, MOVE,  RTD, SANTE, TRADE and the Secretariat-
General and Legal Service.  

The  impact  assessment  of  the  TTBER  and  Guidelines  was  also  carried  out  in  cooperation 
with  the  National  Competition  Authorities  ("NCAs"),  which  were  consulted  on  the  policy 
options  and  on  the  draft  revised  rules.  The  milestones  of  the  impact  assessment  phase  are 
shown in the following table. 

IMPACT ASSESSMENT PHASE 

22 December 2024  Launch of the Planning entries 

15 January 2025 

1st ISSG Meeting with the following agenda item: 

-  Discussion of Call for Evidence and draft questionnaire 

30 January 2025 

Publication  of  Call  for  Evidence  and  online  questionnaire  (12-week 
comments period) 

19 June 2025  

2nd ISSG Meeting with the following agenda items:  
-  discussion of results of public consultation  
-  consultation on draft revised TTBER + Guidelines 

30 June 2025 

 Launch of ISC on draft revised TTBER and Guidelines  

2 July 2025 

Upstream meeting with RSB 

2 September 2025 

1st Advisory Committee on the draft revised texts 

61 

 
 
 
 
11 September 2025  Publication of draft revised texts (6-week comment period) 

Publication of the summary of the questionnaire 
Publication of the Expert report on Data Licensing 

3 December 2025  

3rd ISSG Meeting with the following agenda items:  

summary of the public consultation on the draft revised texts 

- 
-  draft IA report 

14 January 2026  

RSB Meeting  

16 January 2026 

Opinion of the RSB 

5 February 2026 

4th ISSG Meeting with the following agenda items: 

-  Result of the RSB Meeting 
-  Presentation of drafts of the revised rules and draft updated IAR 

19 March 2026 

2nd Advisory Committee on the draft final revised texts 

3.  CONSULTATION OF THE RSB 

An upstream meeting with the RSB took place on 2 July 2025 to discuss DG Competition's 
Impact  Assessment  report  for  the  revised  TTBER  and  Guidelines.  In  this  respect,  the  RSB 
members emphasised the need for a clear description of the problems to be addressed through 
the  intervention  and  the  need  for  evidence  and  quantitative  data  for  support  to  the  extent 
possible. Also, the impact of technological as well as market developments were signalled as 
important elements to analyse. DG Competition highlighted the limited quantitative evidence 
that  it  had  been  able  to  gather  on  the  performance  of  the  TTBER,  in  particular  on  the 
potential compliance assessment cost savings and the potential positive impacts of the rules 
in terms of increased dissemination of technology. 

The  meeting  of  the  Regulatory  Scrutiny  Board  (RSB)  took  place  on  14  January  2026.  The 
outcome was a positive opinion with reservations, issued on 16 January 2026. The following 
table  provides  information  on  how  the  comments  made  by  the  RSB  were  addressed  in  this 
Impact Assessment report: 

RSB comments  

Action taken 

It 

identified. 

(1) The  report should assess  the scale of 
should 
the  problems 
analyse, as far as possible, the economic 
losses  resulting  from  the  alleged  legal 
uncertainty; 
the  estimated 
number and size of agreements that may 
currently  be 
inhibited  by  existing 
uncertainty.  Beyond  opinion  data  this 
should  be  based,  to  the  extent  possible, 
impact 
on  observational  data.  The 

including 

The  report  has  been  revised  to  clarify  the 
limitations  in  precisely  quantifying  the  number 
and  value  of  agreements  affected  by 
the 
identified  problems.  Where  empirical  data  allow 
for  extrapolation, 
the  report  now  provides 
affected 
estimates  of 
agreements  (sections  2.3,  6.1,  6.2  and  6.3).  In 
addition, 
include 
empirical  indications  of  the  value  of  certain 
segments  of  licensing  markets  and  of  licensing 

it  has  been  expanded 

the  population  of 

to 

62 

 
 
 
 
assessment  should  be  based  on 
available,  while 
evidence 
presenting 
the 
availability and robustness. 

limitations 

the 
clearly 
in  data 

their  underlying 

(2)  The  intervention  logic  should  clearly 
distinguish  between  problems  identified 
and 
causes 
(problem  drivers).  The  report  should 
refine the intervention logic based on the 
improved  analysis  of  the  problems  and 
drivers. 

root 

impact  assessment 

(3)  The 
should 
explain the evidence base for concluding 
the 
in 
the  measures  contained 
that 
preferred  policy  options  address 
the 
problems  identified.  For  example,  why 
extending  the  grace  period  by  one  year 
for  early  licensing  is  deemed  to  be 
effective  at  addressing  the  identified 
issues,  and  to  what  extent  it  is  also 
effective in key sectors having fast-paced 
innovation  cycles.  The  option  regarding 
data  licensing  should  more  specifically 
describe  the  content  of  the  guidance 
including  what  kind  of 
foreseen, 
practices  might  be  facilitated.  Similarly, 
the  options  on  licensing  negotiations 
groups  should  more  clearly  specify  how 
the guidance is intended to clarify which 
types  of  agreements  and  practices  are 
admissible  or  not  clearly  admissible 
according to the guidance. 

activity  per  firm  (section  1.1).  Based  on  these 
estimates,  the  report  has  also  been  revised  to 
provide  a  quantitative  indication  of  the  main 
types  of  costs 
(i.e.  self-assessment  costs) 
stemming  from  the  lack  of  legal  certainty  in  the 
areas  identified  (section  2.3).  The  report  also 
explains how a low level of legal certainty affects 
economic  decisions  and,  in  certain  areas,  the 
emergence  of  efficiency-enhancing  agreements 
(section 2.3). 

The  report  has  been  revised  to  refine  the 
intervention  logic.  It  clarifies  the  distinction 
between  problems  and  problem  drivers  and 
reframes  the  specific  objectives  of  the  initiative 
(sections  2.1,  2.4  and  4.2).  The  problem  drivers 
are also now further substantiated with additional 
quantitative  and  qualitative  evidence,  including 
recent  trends  in  data  licensing,  as  well  as  the 
growing importance of technology standards and 
licensing  of  standard-essential  technology  via 
pools and platforms (section 2.4). 

The  report  has  been  revised  to  explain  the 
evidence base supporting the identification of the 
policy  options  and  the  choice  of  the  preferred 
option  (sections  5.2  and  7).  This  includes  the 
results of the evaluation  support study, feedback 
from  stakeholders  during  the  impact  assessment 
phase,  empirical  studies  on  technology  markets, 
and the Commission’s enforcement experience. 

Regarding  the  grace  period,  the  report  now 
explains  how  this  provision  simplifies  self-
assessment,  as  supported  by  the  evidence  base 
outlined  above, 
in  situations 
involving  fluctuations  in  market  shares,  while  at 
the same time emphasising the temporary nature 
of this simplification (sections 5.2.1 and 6.1.1). 

for  example 

With  respect  to  data  licensing  and  licensing 
negotiation groups, the report has been expanded 
to  clarify  the  content  of  the  envisaged  guidance, 
including  the  competitive  risks  associated  with 
certain  agreements,  the  types  of  agreements  or 
practices  most  likely  to  comply  with  the  rules, 
and those most likely to infringe them (sections 5 
and 6). 

(4) The economic impact of the proposed  The  report  has  been  revised  to  better  place  the 

63 

 
intervention  should  be  better  assessed  in 
the report. It should, in this regard, place 
the intervention within the wider context 
of the EU market for intellectual property 
rights  and  licensing  agreements,  and  EU 
interventions  affecting  this  market.  It 
should also analyse the potential benefits 
of  the  proposed  measures  on  European 
innovation and competitiveness. 

intervention  within  the  wider  EU  framework  of 
other  initiatives.  Section  1.4  now  provides  a 
clearer  overview  of  recent  and  upcoming  EU 
initiatives  related  to  innovation,  data  and  digital 
markets,  including  the  Data  Act,  the  Digital 
Omnibus  Regulation  Proposal,  the  Data  Union 
Strategy, the European Innovation Act  and other 
cross-references 
related 
elsewhere in the report.  

initiatives,  with 

(5) The report needs to better explain the 
role legal certainty plays in helping drive 
commercial  decisions,  looking  beyond 
the  financial  savings  due  to  reduced 
compliance  costs.  This  analysis  should 
consider  in  what  situations  increased 
legal  certainty  can  increase  contracting 
between parties, and when it may lead to 
decreases. 

(6)  The  report  should  better  analyse  and 
substantiate  possible  anti-competitive 
effects  and  risks,  and  safeguards  that 
could  mitigate  these  risks,  including  for 
licensing negotiation groups. 

The  assessment  of  economic  impacts  has  also 
been  further  expanded  in  Sections  6.1.3,  6.2.3 
and  6.3.3,  with  clearer  explanations  of  how  pro-
competitive  licensing  can  support  innovation, 
technology dissemination and competitiveness in 
the EU. 

The report has been revised to better explain the 
broader  impact  of  legal  certainty  on  businesses’ 
commercial  decisions,  beyond  its  impact  on 
compliance  assessment  costs. 
In  particular, 
Section  2.3  of  the  report  now  clarifies  ways  in 
which  increased  legal  certainty  may  facilitate 
contracting by reducing perceived legal risk, and 
deter  agreements  that  are  more  likely  to  restrict 
competition. See also Section 6 on the impact of 
the  policy  options  on  this  dimension  of  legal 
certainty. 

The  report  has  been  revised  to  explain  the  main 
anti-competitive  effects  and  risks  arising  from 
licensing  agreements  in  general.  It  now  clarifies 
the  key  competitive  risks  associated  with  the 
the 
relevant  agreements  and  explains  how 
envisaged  guidance  will  elaborate  on  these  risks 
and identify safeguards to mitigate them (sections 
2.1  and  5.2).  Particular  attention  has  been  given 
to  expanding  on  these  issues  in  the  section  on 
licensing negotiation groups. 

a 

(7)  The  report  should  provide  more 
analysis  and  extrapolate  the  costs  and 
cost-savings, 
better 
providing 
understanding of the magnitude and scale 
of  the  compliance  costs.  The  report 
should also contextualise the relative size 
of  the  compliance  costs,  for  example  in 
relation  to  the  economic  size  of  the 
agreements  made  or  the  actors  involved. 

The  report  has  been  revised  to  extrapolate  the 
compliance  assessment  costs  stemming  from  a 
low  level  of  legal  certainty,  as  well  as  the  cost 
savings  that  the  preferred  options  are  likely  to 
the  assumptions 
generate.  It  now  sets  out 
underlying 
their 
and 
these 
methodological  limitations.  The  estimated  cost 
savings  have  been  contextualised  in  light  of  the 
different  types  of  value  and  categories  of  actors 

extrapolations 

64 

 
This  analysis  should  include  a  close 
consideration 
methodological 
of 
assumptions and limitations. 

involved in these agreements (section 6). On the 
basis of this analysis, the report also explains, for 
example,  for  which  types  of  agreements  and 
actors the preferred option for Problem 1 is likely 
to  produce  the  greatest  positive  impact  (sections 
6.1 and 7.1). 

framework,  as 
(8)  The  monitoring 
presented  in  the  report,  should  include 
S.M.A.R.T  operational  objectives  and 
R.A.C.E.R indicators. 

in 

The monitoring framework in section 8 has been 
revised  to  better  reflect  S.M.A.R.T.  operational 
objectives  and  R.A.C.E.R. 
indicators.  The 
specific  objectives  are  linked  to  the  indicators, 
the  baseline 
with  progress  assessed  against 
established 
through 
developments  over 
the  nature  and 
time 
recurrence  of  stakeholder  issues.  The  revised 
report  also  clarifies  how  relevance,  acceptance, 
credibility  and  ease  of  monitoring  are  ensured 
through  existing 
information  channels  and 
explains why fully quantitative indicators are not 
feasible given the nature of the initiative. 

the  evaluation  and 
in 

4.  EVIDENCE, SOURCES AND QUALITY 

DG Competition obtained evidence from a wide range of sources to inform this initiative. In 
addition to the Better Regulation tools used for initiatives involving impact assessments, such 
as  the  call  for  evidence,  the  open  public  consultations  and  the  direct  consultation  of 
stakeholders in the reality check workshop, the consultation strategy included a broader effort 
to  incentivise  stakeholder  engagement  to  counterbalance  the  well-known  challenges  of 
collecting  quantitative  evidence  regarding  the  use  of  antitrust  block  exemption  regulations. 
These  challenges  were  also  encountered  in  the  recent  revisions  of  the  block  exemption 
regulations for vertical agreements (in 2022) and horizontal agreements (in 2023).  

First,  DG  Competition  took  advantage  of  competition  law  conferences  and  workshops  to 
publicise  the  initiative  and  invite  authorities,  academics,  businesses  or  law  practitioners  to 
engage. 

Second, DG Competition held meetings with individual stakeholders, at which it encouraged 
participation in the consultation activities and gathered targeted feedback on specific issues. 
These meetings enabled the collection of additional qualitative evidence.  

Third, DG Competition attended the regular meetings of the European Competition Network 
and the EFTA Surveillance Authority (see Annex 2, Section 2.4 for more details), to update 
those authorities on the progress of the initiative and to encourage them to raise awareness of 
the initiative in their respective jurisdictions.  

Fourth,  DG  Competition  extended  the  outreach  beyond  the  usual  stakeholder  groups  by 
communicating  about  the  consultation  activities  on  DG  Competition’s  website,  through  the 

65 

 
 
Commission’s usual communication channels but also through posts on social media and via 
direct communication with stakeholders who had contributed during the evaluation phase.  

Lastly, DG  Competition commissioned an  expert study to inform  the impact  assessment on 
one  of  the  areas  of  the  rules  for  which  policy  options  were  identified:  data  licensing 
agreements. The objective of the study was to provide the Commission with expert advice on 
(i) the types of intellectual property rights or other forms of non-contractual legal protection 
that can apply to data that is licensed for the purposes of production and (ii) the possible pro- 
and anti-competitive effects of such data licensing agreements. The study was conducted by 
Professor Peter Georg Picht, a professor with extensive experience in the fields of intellectual 
property and competition law. 

66 

 
 
 
ANNEX 2: STAKEHOLDER CONSULTATION (SYNOPSIS REPORT) 

1. INTRODUCTION 

Various  consultation  activities  were  carried  out  to  collect  information  and  data  for  the 
revision  of  the  TTBER  and  the  Guidelines.  This  Annex  presents  the  results  of  the 
consultation activities.  

The Commission mapped the stakeholder groups primarily concerned by the revision of the 
TTBER  and  Guidelines,  based  on  the  consultations  conducted  during  the  evaluation  phase. 
This resulted in the identification of the following stakeholder groups:  

(i) 

businesses with operations in the EU, in particular: 
-  undertakings that hold and license intellectual property rights (IP holders);  
-  undertakings that obtain licences and implement such rights in their products 

and services (IP implementers);  

-  undertakings that manage licensing platforms and standard-setting 

organisations; 

-  undertakings responsible for technology transfer and research 

commercialisation in universities (e.g. technology transfer offices). 

(ii) 
(iii) 
(iv) 
(v) 

law firms advising stakeholders on related competition issues; 
industry associations; 
associations of law firms; and 
academics specialising in EU competition law and, in particular, technology 
transfer agreements. 

The consultation activities consisted of:  

•  a call for evidence 
•  an open public consultation based on an online questionnaire; 
•  an open public consultation on draft revised TTBER and Guidelines; 
•  a stakeholder workshop (reality check); 
•  consultations with National Competition Authorities (“NCAs”) and Member States. 

The consultation activities mentioned in this Annex aimed to gather input from stakeholders 
on the policy options proposed for the revision of the TTBER and Guidelines and on other 
proposals to update and clarify the rules. 

2. RESULTS OF THE CONSULTATIONS 

2.1.  Call for evidence and open public consultation based on an online questionnaire 

A call for evidence (four weeks) and a public consultation (twelve weeks) were launched in 
parallel on 31 January 2025 on the Have Your Say portal. 

The call for evidence was published in all 24 official EU languages. The public consultation 
questionnaire was published in the Commission’s three working languages (English, French 
and  German).  The  call  for  evidence  generated  13  replies,  mainly  from  businesses 
(7 respondents), business associations (5 respondents) and one research centre.  

67 

 
Regarding  the  public  consultation,  a  summary  report  of  the  open  public  consultation  was 
published  on  11  September  2025223.  Of  the  34  respondents,  21  replies  were  from  business 
organisations,  8  from  business  associations,  3  from  “other”  stakeholders  and  2  from 
academic/research  institutions.  The  majority  of  the  respondents  (59%)  were  larger 
organisations, though all size categories were represented (see Figure 1 below).  

Figure 1 – Size of the respondent organisations 

6%

21%

15%

59%

Large (250 or
more)

Medium (50 to
249 employees)

Micro (1 to 9
employees)

The  respondent  business  associations  were  either  national  or  Union-wide  and  represented 
members in specific industrial sectors or economic activities (e.g. licensing). The respondent 
businesses  were  mainly  active  in  the  ICT  industry  and  car  manufacturing,  but  also  in  the 
chemical and energy sectors. The academic/research organisations were two universities, one 
in the EU and one in the USA. The “other” respondents were a consultant, a lawyer, and an 
individual identifying as both an academic and a lawyer. 

As  regards  their  activities  in  relation  to  the  licensing  of  technology,  15 respondents  were 
active as a licensor and a licensee to an equal extent (or represent both licensors and licensees 
to an equal extent)224, 9 respondents were active only as licensees (or primarily represented 
licensees)225,  and  6  respondents226  were  active  only  as  licensors  or  primarily  represented 
licensors.  The  remaining  respondents  (3)227  were  neither  licensors  nor  licensees  nor 
organisations representing them228. 

Summary of the responses  

The  call  for  evidence  and  public  consultation  sought  the  views  of  stakeholders  on  possible 
changes  in  the  following  areas:  (i)  the  possible  introduction  of  new  guidance  on  the 
assessment  of  data  licensing  under  Article 101  TFEU  (ii)  the  TTBER’s  market  share 
thresholds  for  technology  markets;  (iii)  the  possible  introduction  of  new  guidance  on  the 

223  The 

summary 

at 
say/initiatives/14478-EU-competition-rules-on-technology-transfer-agreements-revision-/public-
consultation_en  

https://ec.europa.eu/info/law/better-regulation/have-your-

available 

report 

is 

224  11 businesses, 3 business associations and 1 other. 
225  4 businesses, 4 business associations and 1 other. 
226  All businesses. 
227  1 academic/research institution, 1 other and 1 business association. 
228  1 respondent did not answer the question. 

68 

 
 
 
assessment of licensing negotiation groups (“LNGs”), and (iv)  the  existing  guidance on the 
assessment of technology pools229. 

In addition, stakeholders were asked to provide feedback on certain other areas of the TTBER 
and Guidelines to help the Commission assess if the current rules could be improved230.  

(i) Data licensing 

The evaluation indicated that data licensing agreements are increasingly common, and some 
stakeholders  called  on  the  Commission  to  provide  guidance  in  this  area.  At  the  time,  the 
TTBER and Guidelines did not provide specific rules or guidance on data licensing. 

The  public  consultation  questionnaire  asked  stakeholders  whether  they  had  entered  into 
agreements which included a transfer or licence of data in the last five years231. The majority 
of  respondents  answered  affirmatively,  with  12  respondents232  confirming  that  they  had 
entered into such agreements in the last five years and only 2 respondents233 stating that they 
had not234. 

Moreover,  when  asked  about  the  general  effects  on  competition  of  data  licensing 
agreements235,  the  majority  of  respondents  (8)236  indicated  that  data  licensing  creates  more 
pro-competitive  than  anti-competitive  effects,  4  respondents237  answered  that  data  licensing 
generates only pro-competitive effects and only 1 respondent238 answered that data licensing 
generates similar level of pro-competitive and anti-competitive effects in the market239. That 
said,  when  asked  if  data  licensing  agreements  commonly  include  clauses  that  can  restrict 
competition240, many respondents  (13)241 answered affirmatively  by pointing to at  least one 
such  clause,  most  often  citing  field-of-use  restrictions  (10  respondents)  and  exclusivity 
clauses (6 respondents). 

Regarding  possible  options  to  provide  guidance  on  data  licensing  agreements242,  7 
respondents243  favoured  a  possible  expansion  of  the  scope  of  the  TTBER,  1  respondent244 
answered negatively and 4 responded245 that they did not know (see Figure 2 below) 246.  

229  The  questionnaire  covered  all  areas,  however  some  stakeholders  did  not  reply  to  every  question  and/or 

referred to comments made in response to other questions or to separate submissions.  

230  Other areas included the current rules on: (i) potential competition, (ii) know-how, (iii) licensing agreements 
for the purpose of further research and development, (iv) exclusive grant-back obligations, (v) field of use 
restrictions  and (vi) settlement agreements. This factual summary does not cover the feedback received to 
the (few, targeted) questions on these topics. 

231  See Question 2.1. 
232  9 businesses, 1 business association and 1 other. 
233  1 business association and 1 academic/research institution. 
234  20 respondents did not answer the question. 
235  See Question 2.11. 
236  3 businesses, 3 business associations, 1 academic/research institution and 1 other. 
237  All businesses. 
238  A business association. 
239  21 respondents did not answer the question. 
240  See Question 2.6 of the public consultation. 
241  7 businesses, 4 business associations, 1 academic/research institution and 1 other. 
242  See Question 2.17.  

69 

 
 
Figure 2 – Possible expansion of the scope of the TTBER to certain data licensing 
agreements 

58%

33%

8%

Do not know

No

Yes

That said, 4 respondents247 doubted that certain rules included in the TTBER could be easily 
(or at all) applied to the licensing of all types of data. When prompted to elaborate, 2 of these 
respondents248  highlighted  that  agreements  relating  to  raw  data  (i.e.  data  that  has  not  been 
processed  by  the  data  holder)  are  particularly  unsuitable  to  be  assessed  under  the  TTBER 
framework,  because  such  data  is  not  generally  an  IP-protected  technology.  3  of  them249 
considered  that  the  TTBER’s  current  lists  of  hardcore  restrictions  and  excluded  restrictions 
are not similarly applicable to data licensing.  

Asked  whether,  in  the  alternative,  the  provision  of  guidance  on  data  licensing  in  the 
Guidelines  would  increase  legal  certainty250,  8  respondents251  agreed,  with  only  1 
respondent252 opposing such an option and 2 respondents253 answering that they did not know 
(see Figure 3 below) 254. 

243  4 /businesses and 3 business associations. 
244  1 academic/research institution.  
245  4 /businesses and 1 other. 
246  22 respondents did not answer the question. 
247  3 business associations and 1 academic/research institution.  
248  1 business association and 1 academic/research institution.  
249  3 business associations.  
250   See Question 2.22. 
251  4 business, 2 business associations, 1 academic/research institution and 1 other. 
252  1 company/business. 
253  1 company/business and 1 business association. 
254  23 respondents did not answer the question. 

70 

 
 
 
 
 
 
 
 
Figure 3 – If no expansion of the scope of the TTBER, would guidance on data licensing 
agreements in the Guidelines still provide legal certainty? 

18%

9%

73%

Do not know

No

Yes

In  the  call  for  evidence,  respondents  recognised  that  data  has  become  an  increasingly 
valuable economic asset, which plays a central role in many technology transfer relationships 
and favours the provision of guidance on data licensing.  

(ii) 

TTBER market share thresholds for technology markets 

In  the  public  consultation  questionnaire,  stakeholders  were  asked  whether  they  had 
experienced  practical  difficulties  in  applying  the  TTBER’s  market  share  thresholds  for 
technology markets and the 4+ test in the Guidelines.  

The  majority  of  respondents  (9)255  reported  practical  difficulties  in  applying  the  TTBER’s 
market share thresholds for technology markets256, with only 1 respondent257 answering that 
it did not experience such difficulties258. Results for the 4+ test were similar: 7 respondents259 
reported practical difficulties in applying it260 and 2 respondents261 answered that they did not 
encounter difficulties262.  

That said, the majority of respondents still entered into technology transfer agreements even 
when they encountered practical difficulties in calculating market shares (7 respondents)263 or 
in applying the 4+ test (3 respondents)264. 

255  7 businesses, 1 business association and 1 other. 
256  See Question 2.30.1. 
257  1 company/business. 
258  24 respondents did not answer this question. 
259  5 businesses, 1 business association and 1 other. 
260  See Question 2.31.1. 
261  All businesses. 
262  25 respondents did not answer this question. 
263  See responses to Question 2.30.1.2. 7 respondents confirmed that – when faced with practical difficulties in 
calculating  market  shares  in  the  technology  market  –  they  still  entered  into  the  technology  transfer 
agreement (albeit with reduced legal certainty or by relying on the 4+ test), while only 3 answered that they 
abandoned the technology transfer agreement. 

71 

 
 
 
When asked whether removing the market share thresholds for technology markets, leaving 
only the market share thresholds for product markets265, would help to achieve the objectives 
of  the  TTBER,  6  respondents266  favoured  this  option,  4  opposed  it267  and  3  answered  that 
they did not know268 (see Figure 4 below)269. 

Figure 4 – Would the removal of the market share thresholds for technology markets help 
achieve the objectives of the TTBER? 

46%

23%

31%

Do not know

No

Yes

When asked whether replacing the TTBER’s market share thresholds for technology markets 
with  a  condition  based  on  the  existence  of  a  certain  number  of  independently  controlled 
substitute  technologies  would  achieve  the  objectives  of  the  TTBER,  5  respondents270 
answered  “Yes”,  7  respondents271  answered  “No”  and  2  respondents272  answered  “Do  not 
know” (see Figure 5 below)273. 

264  See the responses to Question 2.31.1.2. 3 respondents confirmed that – when faced with practical difficulties 
in  applying  the  4+  test  –  they  still  entered  into  the  technology  transfer  agreement  (albeit  with  insufficient 
legal certainty), while 2 responded that they abandoned the technology transfer agreement. 

265  See Question 2.32. 
266  4 businesses and 2 business associations. 
267  2 /businesses, 1 academic/research institution and 1 other. 
268  All businesses. 
269  21 respondents did not answer this question. 
270  3 businesses, 1 academic/research institution and 1 business association. 
271  5 /businesses, 1 business association and 1 other. 
272  2 businesses. 
273  20 respondents did not answer the question. 

72 

 
 
 
 
 
 
 
 
 
Figure 5 – Would replacing the market share thresholds for technology markets with a 
condition based on the existence of substitute technologies help achieve the objectives of the 
TTBER? 

14%

36%

50%

Do not know

No

Yes

When asked whether the application of the TTBER’s market share thresholds for technology 
markets  could  be  improved  by  providing  for  alternative  methodologies  or  metrics  for 
calculating  market  shares  in  addition  to  the  footprint  methodology274,  the  results  were  also 
mixed:  4 respondents  answered positively275, 5 respondents276 answered negatively and 4277 
answered that they did not know278. 

In  the  same  vein,  some  respondents  to  the  call  for  evidence  reported  practical  difficulties 
when calculating market share thresholds in technology markets, arguing that it is difficult to 
define market boundaries, identify substitutes, or measure market shares. They stressed that 
technology  markets  evolve quickly, often revolve around early-stage innovation rather than 
commercialised  products,  and  may  be  inherently  concentrated  without  implying  harm  to 
competition.  As  a  result,  some  stakeholders  called  for  greater  flexibility,  for  example  by 
placing  less  emphasis  on  market  share  calculations  or  by  substituting  them  with  an 
assessment centred on the availability of substitute technologies rather than strict percentage-
based  thresholds.  Overall,  the  respondents  who  commented  on  the  market  share  thresholds 
suggested clarifying and simplifying their operation. 

(iii) 

Licensing negotiation groups (“LNGs”) 

Respondents  to  the  public  consultation  questionnaire  were  divided  over  whether  the 
Commission  should  provide  guidance  on  the  assessment  of  LNGs  under  Article  101 
TFEU279.  When  asked  if  the  Commission  should  provide  such  guidance,  14  respondents280 

274  See Question 2.36. 
275  2 companies/businesses, 1 business association and other. 
276  businesses and 1 business association. 
277  3 businesses and 1 academic/research institution. 
278  21 respondents did not answer the question. 
279  See Question 3.22. 
280   8 businesses, 4 business associations and 2 others.  5 of these respondents are active as a licensor and a licensee to an 
equal  extent  or  are  organisations  representing  both  licensors  and  licensees  to  an  equal  extent,  8  are  active  only  as 
licensees  or  are  organisations  representing  primarily  licensees  and  1  is  neither  a  licensor  nor  a  licensee  nor  an 
organisation representing them. 

73 

 
 
 
 
answered positively,  12  respondents281 answered negatively,  and  3  respondents282  answered 
that they did not know (see Figure 6 below)283. 

Figure 6 – Should the Commission provide guidance on LNGs? 

48%

10%

41%

Do not know

No

Yes

Regarding  the  possible  anti-competitive  effects  of  LNGs284,  stakeholders  mentioned  less 
innovation  in  the  market  resulting  from  lower  R&D  investment  by  technology  owners 
(12 responses), lower quality or choice of downstream products (10), and higher downstream 
prices (7). 

Regarding  the  possible  pro-competitive  effects  of  LNGs285,  stakeholders  mentioned  lower 
downstream  prices  (12  responses),  higher  quality  or  more  choice  for  downstream  products 
(12), and increased innovation in the market from licensees, including follow-on innovation 
(12). 

Similarly  to  the  replies  to  the  public  consultation,  stakeholder  feedback  to  the  call  for 
evidence  was  also  highly  polarised,  with  a  clear  divide  between  technology  implementers 
(who view LNGs as potentially beneficial) and technology owners/pool administrators (who 
are  strongly  sceptical  or  opposed).  On  the  one  hand,  implementers  considered  LNGs  to  be 
potentially  pro-competitive,  arguing  that  they  could  help  address  “collective-action 
problems”  faced  in  SEP  licensing.  These  stakeholders  claimed  that  implementers  may  be 
reluctant to take licences unless their competitors do the same, and that LNGs could provide 
a structured mechanism to achieve balanced negotiations, reduce transaction costs, and limit 
opportunities  for  patent  hold-up.  They  therefore  encouraged  the  Commission  to  consider 
LNGs as legitimate coordination tools, subject to appropriate safeguards. On the other hand, 
technology owners and pool administrators expressed strong reservations about LNGs. They 
warned  that  LNGs  may  function  as  buyer  cartels,  enabling  downstream  competitors  to 

281  10 businesses,  1 business  association  and 1 other.  7 of  these  respondents  are  active  as  a  licensor  and  a licensee  to  an 
equal  extent or  are  organisations  representing  both  licensors  and licensees  to  an  equal  extent  and 5  are  active  only  as 
licensors or are organisations representing primarily licensors. 

282  1  academic/research  institution,  1  business  association  and  1  company/business.  1  of  these  respondents  is  active  as  a 
licensor  and  a  licensee  to  an  equal  extent  or  is  an  organisation  representing  both  licensors  and  licensees  to  an  equal 
extent, 1 is active only as a licensee or is an organisation representing primarily licensees and 1 is neither a licensor nor a 
licensee nor an organisation representing them. 
283  Moreover, 5 respondents did not answer the question. 
284  See Question 3.23. 
285  See Question 3.24. 

74 

 
 
 
 
 
coordinate  on  licensing  strategies,  share  sensitive  information  and  exert  joint  bargaining 
power on patent owners. Many noted that LNGs could facilitate collective hold-out and delay 
negotiations.  Several  emphasised  the  absence  of  any  meaningful  practical  experience  with 
LNGs  in  Europe,  arguing  that  their  competitive  effects  remain  uncertain  at  best  and 
potentially  harmful.  These  stakeholders  also  opposed  introducing  a  soft  safe  harbour  for 
LNGs, arguing that LNGs should be assessed on a case-by-case basis, and that safe-harbour 
treatment  would  risk  legitimising  forms  of  coordination  that  are  incompatible  with  Article 
101 TFEU. 

(iv) 

Guidance on technology pools and other updates to the rules 

In  the  public  consultation  questionnaire,  stakeholders  were  asked  whether  improvements 
were needed  to  the soft  safe harbour for technology pools. Overall, respondents  considered 
that the framework functions well, with mixed views as to which adjustments could improve 
its operation.  

On  the  question  whether  there  is  a  need  for  specific  improvements  to  ensure  that  only 
technologies  essential  to  a  standard  are  included  in  the  pool286,  respondents  were  almost 
equally divided: 15 respondents287 answered affirmatively while 14 respondents288 answered 
negatively (see Figure 7 below)289. 

Figure 7 – Are there any specific improvements needed to ensure that only essential patents 
are included in technology pools within the soft safe harbour? 

48%

52%

No

Yes

286  See Question 3.6. 
287  7  businesses,  6  business  associations  and  2  others.  6  of  these  respondents  are  active  as  a  licensor  and  a 
licensee to an equal extent or are organisations representing both licensors and licensees to an equal extent, 8 
are  active  only  as  licensees  or  are  organisations  representing  primarily  licensees  and  1  is  active  only  as 
licensor or is an organisation representing primarily licensors. 

288  12 businesses, 1 business association and 1 academic/research institution. 7 of these respondents are active 
as a licensor and a licensee to an equal extent or are organisations representing both licensors and licensees 
to an equal extent, 5 are active only as licensors or are organisations representing primarily licensors, 1 is 
active only as a licensee or is an organisation representing primarily licensees, and 1 is neither a licensor nor 
licensee nor an organisation representing them. 

289  5 respondents did not answer this question. 

75 

 
 
 
 
 
In  response  to  a  question  about  whether  there  is  too  much  information  exchange  between 
technology pools and their members290, 14 respondents291 answered “No”, 11 respondents292 
answered “Yes” and 4 respondents293 answered that they did not know294. 

Figure  8  below295  reports  on  the  feedback  to  questions  relating  to  the  transparency  of 
technology  pools296.  There  was  a  relatively  clear  division  of  views  between  technology 
implementers – who advocated for increased transparency – and technology owners, who did 
not see a need for it. 

Figure 8 - Do you believe that the Guidelines adequately address the need for transparency 
in relation to the following issues? 

0%

20%

40%

60%

80% 100%

Governance of technology pools

7%

41%

Essentiality of the patents included in the
pool

Calculation of royalties in the technology
pool

3%

3%

45%

52%

Information on the technologies included
in the pool

3%

38%

Information on contributors to the
technology pool

7%

38%

52%

52%

45%

59%

55%

information on licensees of the
technology pool

7%

46%

46%

Do not know

No

Yes

When asked whether they had experienced issues with double dipping or overlapping patents 
when dealing with technology pools297, 13 respondents298 answered “Yes”, 12 respondents299 
answered “No”, and 4 respondents300 answered “Do not know”301. 

290  See Question 3.10. 
291  11 businesses, 2 businesses associations and 1 other. 9 of these respondents are active as a licensor and 5 are 

active only as licensors or are organisations representing primarily licensors.  

292  6  businesses,  4  business  associations  and  1  other.  3  of  these  respondents  are  active  as  a  licensor  and  a 
licensee to an equal extent or are organisations representing both licensors and licensees to an equal extent 
and 8 are active only as licensees or are organisations representing primarily licensees  

293  2 businesses, 1 business association and 1 academic/research institution. 2 of these respondents are active as 
a licensor and a licensee to an equal extent or are organisations representing both licensors and licensees to 
an equal extent, 1 is active only as a licensee or is an organisation representing primarily licensees and 1 is 
neither a licensor nor licensee nor an organisation representing them. 

294  5 respondents did not answer this question. 
295  29  respondents  answered  the  first  five  questions,  while  28  answered  the  last  one  (on  the  “adequate 

transparency on the information on licensees of the technology pool”). 

296  See Question 3.15. 
297  See Question 3.17. 
298  8 businesses, 4 business associations and 1 other. 
299  8 businesses, 3 business associations and 1 other. 

76 

 
 
 
 
Similar  feedback  was  provided  in  response  to  the  call  for  evidence,  with  stakeholders 
broadly  recognising  the  pro-competitive  role  of  technology  pools,  particularly  in  sectors 
relying  on  SEPs.  Respondents  representing  SEP  holders,  pool  administrators  and  R&D-
intensive companies emphasised that pools reduce transaction costs, prevent royalty stacking, 
facilitate  access  to  technology  -  especially  for  SMEs  -  and  contribute  to  greater  licensing 
transparency.  These  stakeholders  generally  considered  the  current  soft  safe  harbour  to  be 
appropriate and effective.  

A smaller group of stakeholders representing implementers acknowledged the usefulness of 
pools  but  raised  concerns  about  certain  practices,  including  inconsistent  essentiality 
assessments and double dipping (implementers being charged twice for the use of the same 
rights). They called for clearer guidance to support transparency and ensure that pools do not 
facilitate market power or weaken FRAND safeguards. Overall, while views differed on the 
adequacy of existing safeguards, the call for evidence revealed broad support for maintaining 
the  soft  safe  harbour  for  technology  pools,  to  be  complemented  by  targeted  clarifications 
rather than structural reforms. 

The  feedback  to  the  call  for  evidence  and  public  consultation  questionnaire  also  included 
calls  for  technical  amendments  in  several  other  areas,  including  clarifications  to  key 
definitions (e.g. potential competition, active/passive sales), updates to guidance affected by 
recent  case  law  (e.g.  the  guidance  on  patent  dispute  settlement  agreements),  and  the 
alignment  of  certain  definitions  and  provisions  of  the  TTBER  and  Guidelines  with  other 
recently  revised  block  exemption  regulations.  Practitioner  associations  emphasised  the 
continued value of the TTBER and Guidelines as sources of legal certainty and encouraged 
the Commission to undertake targeted rather than structural changes. 

2.2.  Open public consultation on the draft revised TTBER and draft revised Guidelines 

Between  11  September  and  23  October  2025,  the  Commission  held  an  open  public 
consultation  on  draft  revised  TTBER  and  Guidelines.  The  drafts  were  published  in  all  the 
official EU languages. The consultation generated 46 contributions. 

Profile of respondents 

Of  the  46  contributions,  19  emanated  from  business  organisations,  16  were  business 
associations (including 2 associations of lawyers), 3 academic/research institutions, 4 public 
authorities,  2  citizens  (1  EU  and  1  non-EU)  and  1  non-profit  organisation  (see  Figure  1 
below). 

300  3 businesses and 1 academic/research institution. 
301  Moreover, 5 respondents did not answer the question. 

77 

 
 
 
 
 
 
 
Figure 1: Profile of respondents 

41%

4%

35%

9%

9%2%

Business association

Public Authority

Academic/research organisation

Non profit organisation

Company/Business organisation

Citizen

Among  businesses  and  business  associations,  the  most  represented  sectors  included  the 
automotive, telecommunications and electronics sectors.  

Stakeholder feedback 

a.  Feedback on the areas for which policy options were considered 

Market share thresholds for technology markets  

17 stakeholders provided feedback on the TTBER’s market share thresholds for technology 
markets.  The  majority  was  generally  positive  about  the  changes  introduced  in  the  draft 
revised  texts  (which  concerned  primarily  the  treatment  of  technologies  that  have  not  yet 
generated  product  sales  and  the  extension  of  the  grace  period).  Some  of  them  expressed  a 
preference for further amendments, such as lowering the thresholds. A minority criticised the 
changes  and  advocated  removing  the  market  share  thresholds  for  technology  markets 
altogether.    

Data licensing 

Around  15  respondents  provided  feedback  on  the  proposed  guidance  on  data  licensing 
agreements. Almost all the respondents confirmed the need for guidance on the competition 
law assessment of data licensing agreements and supported the provision of guidance by the 
Commission.  

Stakeholders were divided on whether the scope of the guidance provided in the draft revised 
Guidelines  should  be  expanded  to  other  types  of  data.  Moreover,  respondents  favoured 
extending the scope of the TTBER to the licensing of databases protected by copyright or by 
the database sui generis right.  

Some  respondents  also  had  other  remarks,  mainly  to  (i)  request  additional  guidance  in  the 
Guidelines on the application of the proposed new rules to the licensing of datasets pursuant 

78 

 
 
 
to  the  Data  Act302  and  (ii)  ask  for  examples  or  clarifications  on  the  application  of  certain 
paragraphs303.  

Licensing negotiation groups (LNGs) 

Around 30 stakeholders commented on the draft guidance on LNGs. Similarly to the results 
of earlier consultations, technology owners and technology implementers expressed strongly 
opposing  views.  Technology  owners  considered  that  the  Commission  should  not  provide 
guidance  on  LNGs,  stating  that  this  would  encourage  the  formation  of  LNGs,  which  they 
regard as a form of buyer cartel that will result in coordinated hold-outs and excessive buyer 
power,  allowing  implementers  to  drive  down  royalty  rates  to  sub-competitive  levels.  By 
contrast, technology implementers welcomed the draft guidance, saying that it provides legal 
certainty for a form of collective negotiation that is capable of reducing transaction costs and 
information  asymmetries  between  licensors  and  prospective  licensees,  thereby  promoting 
more  informed  and  balanced  licensing  negotiations  and  an  increased  uptake  of  technology 
licences, in particular by SMEs304. 

Regarding the soft safe harbour included in the draft guidance, technology owners considered 
that providing a soft safe harbour is premature, on the basis that LNGs are a new practice and 
the  Commission  has  insufficient  enforcement  experience  to  formulate  the  safe  harbour 
effectively305. By contrast, implementers welcomed the additional legal certainty provided by 
the  safe  harbour  and  considered  that  it  provides  a  balanced  framework  for  collective 
negotiations in cases where a technology owner has freely chosen to engage with an LNG. 

b.  Feedback on other areas 

Technology pools 

Most  comments  concerned  the  proposed  clarifications  to  the  conditions  of  the  soft  safe 
harbour  in  the  Guidelines,  in  particular  the  conditions  relating  to  the  essentiality  of  the 
technology rights included in the pool. It was recognised that the requirement to disclose the 
technology rights included in the pool reflected existing best practices amongst pools, though 
some technology owners and pool administrators cautioned that exhaustive disclosure of the 
technology  rights  and  essentiality  checks  could  have  limited  use  for  implementers.  Some 
technology  owners  and  pool  administrators  opposed  any  amendments  to  the  soft  safe 
harbour306. The safeguard against double dipping (the charging of duplicate royalties for the 
same  technology  rights)  was  generally  well  received,  as  it  aligns  with  existing  pool  best 
practices. 

Other areas of the rules 

A limited number of stakeholders provided comments on other areas, such as the concept of 
potential competitor and the guidance on patent settlement agreements, emphasising the need 
for further guidance based on the most recent case law.  

302  This was suggested by 4 stakeholders. 
303  For example, on whether that raw data can be considered know-how. 
304  Some technology owners agreed that LNGs could facilitate licensing to SMEs. 
305  Technology  owners  stated  that  the  Commission  waited  more  than  15 years  after  issuing  the  first  comfort 
letters for technology pools in the late 1990s (for MPEG-2 and DVD) before it introduced a soft safe harbour 
for pools in the Technology Transfer Guidelines in 2014. 

306  The number of entirely negative responses was however limited.  

79 

 
 
2.3.  Reality check workshop 

The  Commission  organised  an  online  “reality  check”  workshop  on  11 November  2025  to 
gather information  about how the proposed revisions of the rules  would  operate in  real  life 
and how they might affect business incentives and practices, with the aim of ensuring that the 
revised  TTBER  and  Guidelines  are  well  targeted  and  effective  in  delivering  their  intended 
benefits. 

The  reality  check  focussed  on  the  proposed  new  guidance  on  licensing  negotiation  groups, 
the competition law assessment of certain types of data licensing and the clarifications to the 
guidance on technology pools. 

More  than  80  participants  attended  the  workshop.  They  represented  businesses,  industry 
associations,  law  firms,  academics  and  National  Competition  Authorities.  The  workshop 
consisted  of  three  sessions  covering  (i)  technology  pools;  (ii)  licensing  negotiation  groups, 
and  (iii)  data  licensing  agreements.  At  the  start  of  the  workshop,  the  participants  were 
surveyed about the costs that they incur to assess the compliance of their technology licensing 
agreements with Article 101 TFEU. The questions and the feedback are presented below. 

Participants  received  an  issues  paper  in  advance  of  the  workshop,  which  was  intended  to 
structure  the  workshop  discussions.  Representatives  from  DG  Competition  acted  as 
moderators during the three sessions. A summary of the feedback provided by stakeholders at 
the workshop is provided below. 

Survey on compliance costs 

The workshop participants were asked six questions about their compliance assessment costs 
using  the  Slido  platform.  Of  the  82  participants,  65  engaged  with  the  questions,  but  the 
number of respondents varied between questions. The responses were anonymised. 

Profile of the respondents to the survey 

Of  the  59  respondents  to  the  first  question,  20  were  business  organisations,  12  law  firms, 
8 were business associations, 8 public authorities, 3 universities/or academic institutions, and 
8 “other”307. Figure 1 below provides a breakdown of the respondents by category. 

Figure 1 – Which best describes your organisation? 

1…

34%

14%

5%

20%

14%

Business

Law firm

Business association

University/academic institution

Research institute

Public authority

Other

307  The  anonymised  nature  of  the  replies  made  it  impossible  to  establish  the  nature  of  the  participants  in  this 

category. 

80 

 
 
 
Of those that answered “business” in the first question, the vast majority of participants (15) 
were large businesses308. The rest were micro-SMEs (3), small SMEs (2), medium-size SMEs 
(2), and small mid-caps309 (2) 310. Figure 2 below provides a breakdown of the respondents by 
size (see Figure 2 below). 

Figure 2 – If you answered "Business" in Q.1, please specify the size of your business 

13%

8%

8%

8%

63%

Micro SME  (<10 employees and turnover ≤ €2m or balance sheet 
≤€2m)
Small SME (<50 employees and turnover ≤ €10m or balance sheet 
≤€10m)
Medium-sized SME (<250 employees and turnover ≤€50m or 
balance sheet ≤€43m)
Small mid-cap (<750 employees and turnover ≤ €150m or balance 
sheet ≤€129m)
Larger business

Concerning  the  number  of  technology  licensing  agreements  signed  by  the  participants  on 
average per year, of the 34 respondents, 10 signed between 21 and 100 agreements, another 
10  between  1  and  10,  6  respondents  signed  more  than  100,  5  respondents  did  not  sign  any 
agreements and 3 between 11 and 20 (see Figure 3 below). 

308  Note that not all respondents to this question replied that they were businesses organisations in response to 

Question 1. 

309  Small  mid-caps  are  businesses  that  have  250-749  employees,  turnover  ≤  €150  million  or  balance  sheet  ≤ 
€129 million; see Commission Recommendation (EU) 2025/1099 of 21 May 2025on the definition of small 
mid-cap enterprises. 

310  It  should  be  noted  that  (i)  some  of  businesses  that  categorised  themselves  as  SMEs  or  representatives  of 
SMEs in the consultation activities did not provide  information  on their number of employees or turnover 
and  (ii)  some  of  the  business  associations  that  claimed  to  represent  SMEs  also  include  large  businesses 
among their members. 

81 

 
 
 
 
 
 
 
 
 
Figure 3 – On average, how many technology licensing agreements does your organisation 
sign or advise on per year? 

18%

15%

29%

29%

9%

None

1-10

11-20

21-100

More than 100

Regarding the (average)  time and  resources spent on compliance with  EU competition  law, 
10 respondents  replied  that  the  question  was  not  applicable.  Of  the  respondents  who 
considered it applicable, 8  spend between 1 and 3 person-days, 7 more than 5 person-days, 
6 less  than  1  person-day  and  3  between  3  and  5  person-days.  Figure  4  below  provides  a 
breakdown of the respondents by time/resources spent on assessing compliance. 

Figure 4 – How much time and resources does your organisation spend on assessing the 
compliance of licensing agreements with EU competition law (average cost per agreement)? 

18%

29%

24%

21%

9%

Less than 1 person-day

Between 1 and 3 person-days

Between 3 and 5 person-days More than 5 person-days

N/A

Regarding  the  impact  of  the  TTBER  and  Guidelines  on  compliance  assessment  costs  for 
technology  agreements,  several  of  the  35  respondents  replied  that  the  question  was  not 
applicable.  Of  the  respondents  who  considered  it  applicable,  most  of  them  (9  respondents) 
considered that the rules lead to a significant reduction in costs, 6 respondents found a small 
reduction in costs, 3 respondents a very significant reduction in costs and 2 an insignificant or 
no reduction in costs (see Figure 5 below).  

82 

 
 
 
 
 Figure 5 – How do the TTBER and Guidelines affect your compliance assessment costs, 
compared to assessing agreements using only Article 101 TFEU and the case law? 

6%

17%

26%

43%

9%

No reduction in costs or insignificant reduction (0%-5%)

Small reduction in costs (6%-25%)

Significant reduction in costs (26%-50%)

Very significant reduction in costs (> 50%)

N/A

Using this data, it is possible to estimate that the average reduction in cost is around 33%. 

Finally, regarding the assessment costs of market share calculations, more than half of the 34 
respondents  replied  that  the  question  was  not  applicable  (53%),  whereas  6  considered  they 
spend  a  significant  share  of  their  compliance  costs  on  market  share  calculations,  another  6 
respondents  spent  a  small  share  and  4  respondents  spent  none  or  an  insignificant  share  of 
their compliance costs on market share calculations. Figure 6 below provides a breakdown of 
the respondents by share of compliance costs spent on calculating market shares. 

Figure 6 – What share of your compliance assessment costs do you spend on calculating 
market shares for the purpose of applying the TTBER and Technology Transfer Guidelines? 

53%

12%

18%

18%

0%

None or insignificant share (0%-5%)

Small share (6%-25%)

Significant share (26%-50%)

Very significant share (> 50%)

N/A

83 

 
 
 
 Summary of the discussions at the workshop 

Session 1: technology pools 

The discussion centred on the proposed adjustments to the conditions of the soft safe harbour 
for technology pools in the Guidelines. 

-  Disclosure of the pooled technology rights 

Participants discussed the type and level of information that licensees require to understand 
the  scope  and  value  of  the  pooled  technology  rights.  Several  stakeholders  considered  that 
existing  practices  -  such  as  disclosing  the  identity  of  licensors  and  making  patent  lists 
available  -  generally  provide  sufficient  information  for  licensees  and  have  supported  the 
conclusion  of  thousands  of  licences.  They  cautioned  against  imposing  a  single  form  of 
disclosure. Others favoured broader transparency. They stressed the importance of knowing 
which patents are included in the pool, which patents have been subject to essentiality checks, 
how  much  of  the  overall  technology  standard  the  pool  covers,  and  the  methodology  and 
independence  of  the  experts  that  perform  the  essentiality  checks.  Several  participants 
underlined the need for up-to-date information and the need to avoid the charging of royalties 
for expired patents.  

-  Examples and feasibility of disclosure practices 

Some  participants  argued  that  current  disclosure  practices  in  established  pools  show  that 
transparency  and  efficiency  can  co-exist.  Others  noted  concerns  about  the  sufficiency  of 
current transparency levels and the need for more granular information. 

-  Disclosure of essentiality checks 

Licensees  expressed  interest  in  understanding  which  patents  are  checked,  how  they  are 
selected,  and  whether  essentiality  assessments  are  independent  and  robust.  Several  pool 
operators  underlined  that  essentiality  checks  are  typically  conducted  for  internal  purposes 
(e.g.  to  allocate  royalties  between  the  members  of  the  pool)  or  on  a  sampling  basis.  They 
cautioned  that  detailed  disclosure  could  jeopardise  confidential  technical  information. 
Stakeholders stressed the importance of confidentiality protections when sharing essentiality-
related information. 

Session 2: Licensing negotiation groups (LNGs) 

This session attracted the highest level of engagement and reflected the clear divide observed 
in  the  public  consultation  on  the  draft  revised  Guidelines.  Technology  owners  reiterated 
concerns  that  the  draft  guidance  -  and  in  particular  the  proposed  soft  safe  harbour  -  could 
incentivise the formation of LNGs and that LNGs are likely to lead to coordinated hold-outs 
and  excessive  buyer  power.  Conversely,  technology  implementers  emphasised  that  LNGs 
could  reduce  transaction  costs,  mitigate  information  asymmetries  and  foster  more  balanced 
negotiations.  They  also  said  that  the  guidance  provides  much-needed  legal  certainty  in  a 
context where LNGs are beginning to emerge in several sectors. Similarly to the results of the 
public  consultation  on  the  draft  revised  Guidelines,  views  also  diverged  strongly  on  the 
appropriate scope and safeguards of the soft safe harbour.   

84 

 
 
-  Market definition and the assessment of market power 

Participants  recognised  that  defining  the  relevant  licensing  market  is  fundamental  for 
assessing  the  effects  of  LNGs  but  expressed  divergent  views  on  the  appropriate  approach. 
Some  technology  owners  and  pools  said  that  markets  should  be  defined  based  on  the  use 
cases  of  the  technology,  noting  that  licensing  terms  differ  significantly  where  the  same 
technology  is  licensed  for  use  in  smartphones,  cars,  smart  meters  or  payment  terminals. 
Others emphasised that technology rights are not comparable to traditional products and that 
market  power  should  be  assessed  flexibly.  Certain  participants  underlined  bargaining 
asymmetries, noting that prospective licensees are often already using the technology and that 
licensors  face  procedural  hurdles  to  obtain  injunctions  to  enforce  their  IP  rights.  Some 
speakers  noted  the  need  to  remain  consistent  with  the  Commission’s  Market  Definition 
Notice and the case law. 

-  Soft safe harbour 

Several  representatives  of  implementers  strongly  supported  including  a  soft  safe  harbour, 
viewing LNGs as a tool to address perceived imbalances in SEP licensing. Other stakeholders 
warned  that  LNGs  could  amplify  buyer  power  -  particularly  of  large  implementers  -  and 
argued that the Commission should acquire more enforcement experience before proposing a 
soft  safe  harbour  for  LNGs.  They  therefore  favoured  a  case-by-case  assessment.  Some 
implementers  stressed  the  need  to  consider  SME  participation  and  the  barriers  to  entering 
SEP negotiations. Several participants underlined the importance of market share thresholds 
to avoid excessive buyer power. 

-  Voluntary engagement by technology owners and standstill periods 

Participants generally agreed that technology owners must remain free to decide whether they 
engage  with  LNGs.  Several  stakeholders  expressed  concerns  that  a  six-month  standstill  on 
bilateral  negotiations  could  encourage  delays  or  weaken  implementers’  incentives  to 
negotiate. Others considered that a limited standstill period is acceptable and conducive to the 
efficiency of collective negotiations. 

-  Binding nature of LNG outcomes 

Some participants argued that, to avoid strategic behaviour, LNG members should be bound 
by the jointly negotiated terms, similarly to the members of patent pools. Others warned that 
binding arrangements could resemble a coordinated boycott and stressed that both licensors 
and implementers must retain the option to negotiate bilaterally.  

Session 3: data licensing agreements 

Stakeholders  broadly  welcomed  the  proposed  new  guidance  on  data  licensing  agreements, 
confirming  the  need  for  legal  certainty  in  an  area  of  growing  economic  significance.  Some 
suggested  ensuring  that  data  shared  pursuant  to  the  Data  Act  can  be  protected  by 
confidentiality mechanisms without creating uncertainty under competition law. 

85 

 
 
 
 
 
2.4. Consultation of National Competition Authorities and Member States 

As noted in the Evaluation Report, National Competition Authorities (“NCAs”) have little or 
no recent experience of applying the TTBER and Guidelines311. The one NCA that reported 
some  enforcement  experience  has  been  more  engaged  in  the  consultations,  and  the 
Commission services have held bilateral meetings with the NCA to obtain their views. 

Nonetheless,  all  NCAs  have  been  consulted  periodically  throughout  the  evaluation  and 
impact  assessment  via  the  regular  meetings  of  the  European  Competition  Network.  The 
EFTA  Surveillance  Authority  has  also  been  informed  about  the  progress  of  the  impact 
assessment.  Relevant  ministries  of  the  Member  States  were  consulted  on  the  draft  revised 
TTBER  and  Guidelines  at  a  meeting  of  the  Advisory  Committee  in  September  2025.  No 
comments were received.  

2. 5. Stakeholder engagement outside the formal consultations  

The  Commission  services  have  made  themselves  available  to  meet  stakeholders  throughout 
the  evaluation  and  impact  assessment.  They  met  sector  representatives  and  businesses 
affected by the initiative, who provided their views and experience on the functioning of the 
TTBER  and  Guidelines  during  the  evaluation  phase,  as  well  as  their  views  on  the  draft 
revised texts published in the impact assessment phase.  

311 See the Evaluation Report, page 76. 

86 

 
 
 
ANNEX 3: WHO IS AFFECTED AND HOW? 

1.  PRACTICAL IMPLICATIONS OF THE INITIATIVE 

The  initiative  consists  in  a  revision  of  the  TTBER  and  the  Guidelines.  It  preserves  the 
structure  and  framework  of  the  existing  rules,  which  the  evaluation  confirmed  to  be  useful 
and relevant for stakeholders. 

It  is  important  to  recall  that  the  TTBER  and  Guidelines  do  not  impose  obligations  on 
businesses;  the  competition  law  obligations  of  businesses  in  relation  to  technology  transfer 
agreements derive from Article 101 TFEU. The TTBER and Guidelines provide a simplified 
set  of rules  for businesses to  assess the  compliance of  their technology  transfer agreements 
with the Treaty. 

The revised TTBER and Guidelines will primarily affect businesses and, indirectly, the law 
firms and other professionals who advise businesses on compliance with Article 101 TFEU. 
The revised TTBER and Guidelines may also have implications for the National Competition 
Authorities  (“NCAs”)  and  national  courts.  While  the  evaluation  showed  that  they  have 
limited recent enforcement experience in relation to technology licensing agreements312, it is 
not excluded that this experience may evolve.  Indirectly, the revised TTBER and Guidelines 
will also positively affect consumers, but the initiative has no practical implications for them.   

Businesses: 

Businesses use the TTBER and Guidelines to assess compliance of their technology transfer 
agreements with Article 101 TFEU. They use the TTBER to assess whether their agreement 
can benefit from the block exemption, i.e. the legal safe harbour from the prohibition of anti-
competitive  agreements  in  Article  101.  Businesses  use  the  Guidelines  to  help  them  to 
interpret  the  TTBER’s  conditions.  They  also  use  the  Guidelines  to  help  them  to  assess  the 
compliance with Article 101 of agreements that fall outside the block exemption.  

In the evaluation, stakeholders confirmed that the TTBER and Guidelines are valuable tools 
that  significantly  facilitate  the  task  of  assessing  the  compliance  of  technology  transfer 
agreements  with  Article  101  TFEU.  As  the  initiative  preserves  the  structure  of  the  existing 
framework  of  assessment,  businesses  will  be  able  to  continue  applying  the  same  approach 
when  assessing  their  agreements.  This  continuity  preserves  businesses’  overall  familiarity 
with the system.  

At  the  same  time,  the  initiative  addresses  the  areas  where  stakeholders  reported  legal 
uncertainty or complexity, in particular the application of TTBER’s market share thresholds 
for technology markets and the lack of guidance on the competition law assessment of data 
licensing agreements and licensing negotiation groups. By clarifying the rules and providing 
new  guidance  in  these  areas,  the  initiative  increases  legal  certainty  and  makes  it  easier  and 
less costly for businesses to assess the compliance of their agreements with Article 101. As 
outlined  in  Section  2.3  of  this  report  and  Annex 6,  although  there  was  limited  direct 

312  See the Evaluation Report, pp. 22-23 and the Evaluation Support Study, pp. 29 and 193. 

87 

 
 
 
participation  from  SMEs  in  the  evaluation  and  impact  assessment,  the  TTBER  and 
Guidelines are also  used by SMEs, and the evidence suggests that greater legal  certainty is 
also helpful for them. Indirectly, law firms and other professionals who advise businesses on 
compliance  with  Article 101  TFEU  also  benefit  from  a  clearer  set  of  rules,  which  would 
allow them to advise their clients more effectively.  

Enforcement authorities: 

The initiative would not have significant practical implications for the Commission, NCAs or 
national  courts.  As  the  TTBER  is  binding  on  NCAs  and  national  courts,  these  authorities 
would be required to take into account the revised provisions of the TTBER when assessing 
whether  a  technology  transfer  agreement  falls  within  the  block  exemption.  The  Guidelines 
only  bind  the  Commission,  but  NCAs  and  national  courts  typically  rely  upon  the 
Commission’s  guidelines  for  the  purpose  of  interpreting  Commission  block  exemption 
regulations and when they apply Article 101 TFEU to the agreements concerned. 

The initiative does not substantially alter the framework of analysis provided by the TTBER 
and the Guidelines. Key provisions of the TTBER, such as the market share thresholds and 
the  lists  of  hardcore  restrictions  and  excluded  restrictions  remain  unchanged.  Enforcement 
authorities  would  therefore  continue  to  apply  the  same  overall  approach  when  enforcing 
Article  101  TFEU.  For  this  reason,  the  initiative  is  not  expected  to  generate  significant 
practical changes for the Commission, NCAs or national courts. 

The  TTBER  and  Guidelines  will  also  continue  to  facilitate  the  enforcement  work  of 
competition authorities. While the TTBER and the safe harbour that it provides are primarily 
intended  to  assist  businesses  with  their  compliance  assessments,  they  also  simplify  the 
enforcement work of the Commission  and NCAs. When they investigate  an agreement, the 
TTBER  enables  them  to  determine  efficiently  whether  it  meets  the  conditions  of 
Article 101(3) TFEU,  while  the  Guidelines  provide  a  framework  for  assessing  technology 
transfer agreements that fall outside the block exemption. A clearer and more up-to-date set 
of  rules  resulting  from  the  initiative  would  therefore  support  the  effective  enforcement  of 
Article 101, without imposing additional burdens on enforcement authorities. 

Consumers:  

The  initiative  is  not  expected  to  have  direct  practical  implications  for  consumers,  as  the 
TTBER and Guidelines do not apply to them and are not used by them. Indirectly, however, 
consumers would benefit from the initiative, as clearer and more effective rules facilitate the 
use  of  technology  transfer  agreements,  thereby  promoting  the  dissemination  of  technology 
and incentivising R&D. This can in turn be expected to lead to increased innovation, which 
can translate into better quality and more varied products and lower prices.  

88 

 
 
 
 
 
2.  SUMMARY OF COSTS AND BENEFITS 

I. Overview of Benefits (total for all provisions) – Preferred Options 

Description 

Compliance  cost  reductions 
for businesses  

Amount 

Direct benefits 

Comments 

The  preferred  options  will  make  it  easier 
for  businesses  to  determine  whether  their 
technology  transfer  agreements  fall  within 
the  safe  harbour  provided  by  the  TTBER 
and  to  assess  whether  their  data  licensing 
agreements  and  their  licensing  negotiation 
groups comply with Article 101 TFEU.  

Based on a number of assumptions, the preferred 
option for Problem 1 is expected to reduce 
aggregate compliance assessment costs by 
between EUR 223,000 and EUR 1,836,000 per 
year. Based on a number of assumptions, the 
preferred option for Problem 2 is expected to 
reduce compliance assessment costs by between 
EUR 739,200 and EUR 7,392,000 per year. 
While it was not possible to precisely quantify 
the cost reductions resulting from the preferred 
option for Problem 3, it is expected to facilitate 
the formation of pro-competitive LNGs, while 
deterring those that are likely to lead to anti-
competitive effects.  

Legal certainty 

Not possible to quantify 

Indirect  compliance  cost 
reductions  

Indirect benefits 

Not possible to quantify 

The  initiative  is  expected  to  increase  the 
level  of  legal  certainty  as  compared  to  the 
existing rules.  

All  sectors  can  benefit  from  the  fact  that 
businesses  involved  in  technology  transfer 
agreements have more legal certainty. 

of 

risk 

limited 

to  enter 

the  confidence 

The 
competition 
infringement  through  agreements  designed 
to  benefit  from  the  block  exemption  gives 
parties 
into 
agreements  that  they  might  not  otherwise 
have  concluded.  This 
is  a  significant 
positive effect, as the TTBER is expected to 
lead  to  more  pro-competitive 
licensing 
its  absence,  and 
than 
agreements 
of 
therefore 
dissemination 
greater 
to 
innovation  and  stronger 
innovate.  

incentives 

in 

and 

legal 

number 

certainty 

Increased 
lower 
compliance assessment costs may lead to a 
pro-competitive 
of 
greater 
technology transfer agreements. This can be 
expected  to  lead  to  greater  diffusion  of 
innovation, 
improved  product  quality, 
lower  production  costs  and  potentially 
lower prices, as well as increased variety of 
products  and  technologies  available  on  the 
market. 

Wider economic benefits  

Not possible to quantify 

89 

 
  
 
 
II. Overview of costs – Preferred options 

Citizens/Consumers 

Businesses 

Administrations 

One-off 

Recurrent 

One-off 

Recurrent 

One-off 

Recurrent 

Direct 
adjustment 
costs 

Not 
applicable 
(n.a.) 

n.a. 

n.a. 

n.a. 

n.a. 

n.a. 

Indirect costs 

n.a. 

Simplified 
application 
of 
the 
market 
share 
thresholds 
in 
technology 
markets   

Direct 
administrative 
costs 

Direct 
regulatory fees 
and charges 

Direct 
enforcement 
costs 

Data 
licensing   

Direct 
adjustment 
costs 

Direct 
administrative 
costs 

Direct 
regulatory fees 
and charges 

Direct 
enforcement 
costs 

Direct 
adjustment 
costs 

Direct 
administrative 
costs 

Direct 
regulatory fees 
and charges 

Direct 
enforcement 
costs 

Licensing 
Negotiation 
Groups   

n.a. 

n.a. 

n.a. 

n.a. 

n.a. 

Indirect costs 

n.a. 

Indirect costs 

n.a. 

n.a. 

n.a. 

n.a. 

n.a. 

n.a. 

n.a. 

n.a. 

n.a. 

n.a. 

n.a. 

n.a. 

n.a. 

n.a. 

n.a. 

n.a. 

n.a. 

0 

0 

n.a. 

n.a. 

n.a. 

0 

0 

n.a. 

n.a. 

n.a. 

0 

0 

n.a. 

n.a. 

n.a. 

0 

0 

0 

0 

n.a. 

n.a. 

0 

0 

n.a. 

n.a. 

0 

0 

0 

0 

n.a. 

n.a. 

0 

0 

0 

0 

0 

0 

0 

0 

n.a. 

n.a. 

0 

0 

0 

0 

0 

0 

n.a. 

n.a. 

n.a. 

0  

0  

n.a. 

n.a. 

n.a 

0 

0 

n.a. 

n.a. 

n.a. 

90 

 
 
 
 
 
 
 
III. Application of the ‘one in, one out’ approach – Preferred options 

One-off 

Recurrent 

Total 

[M€] 

(annualised total net present 
value over the relevant period) 

(nominal values per year) 

Businesses 

New administrative 
burdens (INs) 

Removed administrative 
burdens (OUTs) 

Net administrative 
burdens* 

Adjustment costs** 

Citizens 

New administrative 
burdens (INs) 

Removed administrative 
burdens (OUTs) 

Net administrative 
burdens* 

Adjustment costs** 

Total administrative 
burdens*** 

Not applicable (n.a.) 

n.a. 

n.a. 

n.a. 

n.a. 

n.a. 

n.a. 

n.a. 

n.a. 

n.a. 

n.a. 

n.a. 

n.a. 

n.a. 

n.a. 

n.a. 

n.a. 

n.a. 

n.a. 

n.a. 

n.a. 

n.a. 

n.a. 

n.a. 

n.a. 

(*) Net administrative burdens = INs – OUTs;  
(**) Adjustment costs falling under the scope of the OIOO approach are the same as reported in Table 2 above. Non-
annualised values;  
(***)  Total  administrative  burdens  =  Net  administrative  burdens  for  businesses  +  net  administrative  burdens  for 
citizens. 

3.  RELEVANT SUSTAINABLE DEVELOPMENT GOALS 

IV. Overview of relevant Sustainable Development Goals – Preferred Option(s) 
Relevant SDG 

Expected progress towards the Goal 

Comments 

SDG no. 9:  

Build resilient infrastructure, 
promote 
and 
sustainable  industrialization 
and foster innovation 

inclusive 

The  TTBER  and  Guidelines  are  expected  to 
support progress under SDG 9 by promoting the 
diffusion,  uptake  and  commercialisation  of 
innovative  technologies.  By  providing  clearer 
rules  for  technology  transfer  agreements,  the 
initiative  facilitates  access  to  new  technologies, 
encourages 
follow-on 
innovation,  and  helps  businesses  -  including 
SMEs - integrate innovative solutions. 

incremental 

and 

The  initiative  is  likely  to  reduce  legal 
uncertainty,  encourage 
investment,  and 
promote  diffusion  of  innovation.  This  may 
indirectly  stimulate  research  and  support  a 
more dynamic innovation ecosystem. 

91 

 
 
 
 
 
 
 
 
ANNEX 4: ANALYTICAL METHODS 

This annex provides an overview of the methods used in this impact assessment report. The 
analysis  combines  the  evidence  described  throughout  the  report  and  listed  in  Section  4  of 
Annex  1  and  Annex  2.  The  assessment  mainly  relies  on  qualitative  and  multi-criteria 
analysis.  

1.  The assessment of impacts 

The  assessment  of  the  impacts  of  the  policy  options  was  based  primarily  on  qualitative 
analysis,  as  robust  quantitative  data  was  scarce.  Evidence  from  the  various  sources  was 
triangulated where possible.      

The  Evaluation  Support  Study  had  already  highlighted  significant  challenges  in  obtaining 
reliable quantitative data (for instance, on the magnitude of the market practices concerned), 
and similar constraints were encountered in the impact assessment phase.  

Impacts  on  competition  were  assessed  mainly  on  the  basis  of  insights  from  economic 
literature  on  licensing  and  technology  markets,  feedback  from  stakeholders  and  evidence 
from  the  evaluation  and  the  Expert  Report  on  Data  Licensing.  The  analysis  considered 
whether  and  to  what  extent  each  option  would  promote  the  use  of  pro-competitive 
agreements, either through the application of the block exemption or through the provision of 
appropriate guidance.  

Impacts  on  businesses  were  examined  primarily  by  considering  the  capability  of  the  policy 
options  to  reduce  businesses’  compliance  assessment  costs.  For  this  purpose,  qualitative 
evidence  and  (limited)  quantitative  evidence  was  used,  namely  compliance  assessment  cost 
data  provided  by  stakeholders  during  the  evaluation  and  the  impact  assessment  phases.  To 
supplement  and corroborate this data, additional  evidence  was gathered  at the reality  check 
workshop  from  businesses  familiar  with  technology  transfer  agreements  (see  Annex 2  for 
more  detail).  On  this  basis,  the  impact  assessment  report  provides  –  where  possible  – 
indicative estimates of the impacts on compliance assessment costs.  

Impacts on innovation and competitiveness were assessed by analysing the possible effects of 
the  agreements  covered  by  each  policy  option  on  these  two  parameters.  This  assessment 
relies primarily on economic studies on technology licensing and stakeholder feedback.  

2.  Multi-criteria analysis model 

In line with the Better Regulation Guidelines, a multi-criteria analysis (MCA) was carried out 
to  assess  the  policy  options.  An  MCA  enables  the  comparison  of  policy  options  against 
several different independent criteria. The impacts were assessed primarily qualitatively and 
expressed as a comparison with the baseline scenario.  

Three assessment criteria were applied and the following questions  were answered for each 
policy option: 

•  Effectiveness:  the  extent  to  which  each  option  is  expected  to  meet  the  specific 
objective  for  each  problem  identified,  namely  reducing  the  complexity  faced  by 
businesses  when  they  apply  the  TTBER’s  market  share  thresholds  for  technology 
markets (Problem 1) and facilitating the competition law assessment of data licensing 

92 

 
agreements  and  LNGs  under  Article  101  TFEU  (Problems 2  and 3),  as  well  as  the 
general objective of ensuring the effective protection of competition. 

•  Efficiency: comparison of the expected costs and benefits for stakeholders. 

•  Coherence: the extent to which the initiative is coherent with other Commission rules 
and guidance on the application of Article 101 TFEU, the Commission’s strategy in 
relation  to  data313  and  the  primary  legislation  in  this  area,  as  well  as  other  relevant 
Union legislation.  

This  assessment  was  carried  out  based  on  the  following  scoring  system,  and  the  scores 
captured the performance of each policy option on the different assessment criteria:  

•  − represented a downgrade as compared to the baseline;  
•  + represented an improvement as compared to the baseline; 
•  0 represented no change as compared to the baseline.  

313  See  the  references  to  the  Communication  on  a  European  strategy  for  data  and  the  Communication  on  the 

Data Union Strategy in Section 1.4 above.  

93 

 
 
ANNEX 5: COMPETITIVENESS CHECK 

1.  OVERVIEW OF IMPACTS ON COMPETITIVENESS  

Dimensions of 
Competitiveness 

Impact of the initiative 
(++ / + / 0 / - / -- / n.a.) 

References to sub-sections 
of the main report or 
annexes 

Cost and price competitiveness  + 

International competitiveness  

Capacity to innovate 

SME competitiveness 

+ 

+  

+  

2.  SYNTHETIC ASSESSMENT  

6.1.3, 6.2.3, 6.3.3 

6.1.3, 6.2.3, 6.3.3 

6.1.3, 6.2.3, 6.3.3 

6.1.3, 6.2.3, 6.3.3 

Costs and price  competitiveness: The initiative is  expected to improve  cost  and price 
competitiveness  by  making  it  easier  for  businesses  to  assess  the  compliance  of  their 
technology  transfer  agreements,  data  licensing  agreements  and  Licensing  Negotiation 
Groups (LNGs) with Article 101 TFEU, thereby lowering compliance assessment costs. 
By  simplifying  the  application  of  the  TTBER  and  providing  guidance  on  other 
technology-related  agreements, 
legal  uncertainty  for 
businesses.  This  greater  legal  certainty  makes  it  easier  for  businesses  to  conclude 
licensing  agreements  that  facilitate  access  to  technology.  More  efficient  technology 
licensing  can,  in  turn,  reduce  production  costs  for  licensees  and  support  competitive 
pricing in downstream markets.  

initiative  helps  reduce 

the 

International  competitiveness: The initiative is expected to  have  a limited but  overall 
positive  effect  on  international  competitiveness.  Increased  legal  certainty  may  increase 
the  attractiveness  of  the  EU,  particularly  for  undertakings  that  require  predictable 
competition-law  compliance  when  doing  business  across  multiple  jurisdictions.  While 
the  TTBER  and  Guidelines  are  neutral  regarding  the  nationality  of  the  parties,  greater 
legal certainty may indirectly strengthen the competitive position of EU businesses.  

Capacity  to  innovate:  The  initiative  is  expected  to  support  undertakings’  capacity  to 
innovate.  By  encouraging  licensing  of  technology  rights,  the  initiative  may  improve 
licensors’ ability to recoup R&D investments and enable licensees to develop or improve 
upon  existing  technologies.  These  dynamics  contribute  to  cumulative  innovation, 
particularly  in  sectors  where  follow-on  innovation  relies  on  access  to  upstream 
technologies. Similar considerations apply to data licensing. 

SME  competitiveness:  The  initiative  is  expected  to  have  a  positive  impact  on  SME 
competitiveness  by  reducing  the  costs  for  businesses  of  assessing  compliance  with 
Article 101 TFEU. As SMEs typically have more limited legal and economic resources 
(than  larger  companies),  they  are  expected  to  particularly  benefit  from  increased  legal 
certainty and clearer rules. 

 
 
3.  COMPETITIVE ASSESSMENT OF THE MOST AFFECTED SECTORS 

The present initiative is not sector-specific. That said, it is likely to have a greater impact 
in IP and data-intensive sectors, in which technology licensing is more common. These 
include  telecommunications,  electronics,  pharmaceuticals,  automotive  and  other  digital 
sectors.  

The  clarifications  concerning  the  application  of  market  share  thresholds  in  technology 
markets,  as  well  as  the  guidance  relating  to  data  licensing  and  LNGs  are  expected  to 
reduce  legal  uncertainty  and  help  businesses  self-assess  their  agreements  under  Article 
101  TFEU.  By  lowering  complexity  and  improving  legal  certainty,  the  initiative  may 
support  smoother  technology  licensing  practices  and  contribute  to  a  more  effective 
diffusion of innovation.  

While  the  precise  magnitude  of  these  effects  will  depend  on  market  conditions  and 
businesses’ licensing behaviour, clearer rules can be expected to create a more favourable 
environment for technology uptake, and in turn competitiveness and innovation. 

95 

 
 
  
 
 
ANNEX 6: SME CHECK  

OVERVIEW OF IMPACTS ON SMES 

Relevance for SMEs: Based on the SME filter, this initiative is relevant for SMEs314. 

(1) 

IDENTIFICATION OF AFFECTED BUSINESSES AND ASSESSMENT OF RELEVANCE 

Are SMEs directly affected? Yes  

In  which  sectors?  SMEs  in  all sectors  may  be  affected,  but  they  are  more  likely  to  be 
affected in IP-intensive and data-intensive sectors315, where technology licensing is more 
common,  such  as  the  telecommunications,  electronics,  pharmaceuticals  and  automotive 
sectors316. 

Estimated  number  of  directly  affected  SMEs:  Section  1.1  and  Section  2.3  above 
explains the difficulty of quantifying the exact scale of technology licensing, referring to 
the  findings  set  out  on  pages  16  of  the  Evaluation  Report  and  165  of  the  Evaluation 
Support  Study  regarding  the  lack  of  data  on  the  number  of  technology  licensing 
agreements  and  the  number  of  businesses  that  have  entered  into  such  agreements.  It  is 
therefore not possible to provide an estimate of the number of directly affected SMEs. 

Nonetheless, according to the 2022 intellectual property SME scoreboard, only 10 % of 
EU SMEs own registered IP rights, i.e. a small proportion of the total SME population317. 
Evidence from the European Patent Office shows that licensing is the most common form 
of  collaborative  exploitation  of  IP  rights  used  by  SMEs318.  The  2019  EUIPO  SME 
scoreboard  provides  more  detail  on  licensing  behaviour:  it  reports  that  24%  of  IPR-
owning SMEs had signed at least one licence agreement including IPRs, and among those 
IPR owners the roles were distributed as 29% licensee (license-in), 35% licensor (license-
out) and 36% both319.  As regards data in particular, a 2019 survey indicated that around 
40% of SMEs struggle to access the data they need to develop data-driven products and 
services.320 

Estimated  number  of  employees  in  directly  affected  SMEs:  For  the  reasons  stated 
under the previous heading in relation to the number of directly affected SMEs, it is not 
possible to estimate the number of affected SME employees.  

314  See https://ec.europa.eu/docsroom/documents/63274  
315  See the Evaluation Support Study, page 28. 
316  Stakeholders from these sectors were the most active in the various consultation activities. 
317  EUIPO, Intellectual Property SME Scoreboard (2022), page 3. 
318  European  Patent  Office  (EPO)  Patent  Commercialisation  Scoreboard:  European  SMEs  (2019), 

page 11. 

319  EUIPO, SME Scoreboard (2019), pp. 99-101. 
320 European Commission (2019). SME panel consultation B2B data sharing - Final Report. 

96 

 
 
 
 
Are SMEs indirectly affected? Yes. SMEs may be indirectly affected, for example, by 
the positive and negative effects on competition that can result from technology and data 
licensing agreements concluded between third parties.   

In which sectors? As stated above, SMEs in all sectors may be indirectly affected, but 
they  are  more  likely  to  be  affected  in  IP-intensive  and  data-intensive  sectors,  where 
technology and data licensing is more common. 

What is  the estimated number of indirectly affected SMEs and employees? For the 
reasons  stated  above  regarding  the  difficulty  of  quantifying  the  scale  of  technology 
licensing and data licensing in general, it is not possible to estimate the number of SMEs 
or their employees that are indirectly affected. 

(2)  CONSULTATION OF SME STAKEHOLDERS 

How has input from SMEs been taken into consideration? 

SME business associations, such as SMEunited, Eurochambres and EuroCommerce and 
other members of the SME Envoys network were contacted on two occasions during the 
impact  assessment  to  ask  them  to  encourage  their  members  to  participate  in  the 
consultation  activities.  Nonetheless, 
the 
limited,  and  SMEs  were  mainly  represented  by  business 
consultations  was 
associations321.   

the  number  of  SME  contributions 

to 

•  Call for evidence and public consultation questionnaire: 

Of  the  13  respondents  to  the  call  for  evidence,  one  was  a  business  association 
representing SMEs in the technology development community. 

Of the 46 responses to the public consultation questionnaire, 3 came from businesses that 
categorised  themselves  as  SMEs,  and  2  emanated  from  business  associations  which 
either represent SMEs or have SMEs among their members.  

•  Public consultation on the draft revised TTBER and Guidelines: 

Of the 46 responses to the consultation on the draft revised texts, 4 came from businesses 
that categorised themselves as SMEs, and 3 came from business associations that either 
represent SMEs or have SMEs among their members. 

•  Reality check workshop: 

9  respondents  to  the  survey  held  during  the  reality  check  workshop  categorised 
themselves  as  SMEs  (3  micro-SMEs,  2  small  SMEs,  2  medium-sized  SMEs)  and  2 

321  It should be noted that (i) some of businesses that categorised themselves as SMEs or representatives of 
SMEs  in  the  consultation  activities  did  not  provide  information  on  their  number  of  employees  or 
turnover and (ii)  some of the business associations  that claimed to represent SMEs  also  include large 
businesses among their members. 

97 

 
 
 
 
 
respondents categorised themselves as small mid-caps.  

Are  SMEs’  views  different  from  those  of  large  businesses?  Business  associations 
representing  SMEs  stated  that  SMEs  generally  possess  less  resources  and  expertise  to 
carry out specialised competition law assessments for agreements that do not fall within 
the scope of the TTBER. Moreover, the evaluation found that SMEs use the TTBER (in 
particular  its  list  of  hardcore  restrictions)  for  defensive  purposes  in  their  negotiations 
with larger businesses322.  

(3)  ASSESSMENT OF IMPACTS ON SMES323 

What are the estimated direct costs for SMEs of the preferred policy option?  

As  explained  in  Section  1  of  this  report,  the  TTBER  and  Guidelines  do  not  create 
obligations  for  businesses:  the  competition  law  obligations  of  businesses  in  relation  to 
technology  transfer  agreements  derive  from  Article 101 TFEU.  Consequently,  the 
preferred policy options do not result in direct costs for SMEs.   

Qualitative assessment 

Not applicable, for the reason stated above. 

Quantitative assessment 

Not applicable, for the reason stated above. 

What are the estimated direct benefits/cost savings for SMEs of the preferred policy 
option?324 

Qualitative assessment 

As set out in Sections 6.1.2, 6.2.2 and 6.3.2 of this report (impacts of the policy options 
on businesses), the preferred options are expected to reduce the compliance assessment 
costs of SMEs, by reducing the complexity of applying the TTBER and Guidelines and 
by providing guidance on the competition law assessment of new types of agreement. 

Quantitative assessment 

For  Problem  1,  the  preferred  option  is  expected  to  reduce  the  cost  for  businesses  of 
applying the TTBER by approximately EUR 149-306 per agreement. 

For  Problem  2,  the  preferred  option  (providing  guidance  in  the  Guidelines  on  the 
competition  law  assessment  of  data  licensing  agreements)  is  expected  to  reduce 
businesses’ compliance assessment costs significantly (by around 33% or EUR 1,848 per 

322  See Section 4.3 of the Evaluation Report and page 29 of the Evaluation Support Study. 
323  The data on costs and benefits in this Annex are consistent with the data in Annex 3.  
324  The direct benefits for SMEs can also be cost savings. 

98 

 
 
 
 
agreement, on average), compared to a situation in which businesses have to assess their 
agreements using only Article 101 TFEU and the case law. 

For  Problem  3,  while  it  was  not  possible  to  precisely  quantify  compliance  cost 
reductions, the preferred option is expected to facilitate the formation of pro-competitive 
LNGs, while deterring those that are likely to lead to anti-competitive effects. 

It  has  not  been  possible  to  quantify  compliance  assessment  costs  separately  for  SMEs, 
however  there  is  no  reason  to  suspect  that  the  above  expected  cost  reductions  do  not 
apply equally to SMEs.  

What are the indirect impacts of this initiative on SMEs? 

As  set  out  in  Sections  6.1.1,  6.1.3,  6.2.1,  6.2.3,  6.3.1  and  6.3.3  of  this  report,  the 
preferred  policy  options  are  expected  to  have  a  positive  impact  on  competition  in  the 
market and on innovation and competitiveness. As noted above, SMEs may act both as 
licensors and licensees. Pro-competitive licensing agreements enable implementer SMEs 
to  enter  new  markets  and  expand  in  existing  ones,  and  they  enable  SMEs  that  own 
technology rights to license them out efficiently. Increased licensing can enhance SMEs’ 
capacity  to  innovate  and  improve  their  productivity,  thereby  strengthening  their  overall 
competitiveness.  

(4)  MINIMISING NEGATIVE IMPACTS ON SMES 

Are  SMEs  disproportionately  affected  compared  to  large  companies?  No,  because 
the initiative does not create obligations for businesses. 

If yes, are there any specific subgroups of SMEs more exposed than others? No 

Have mitigating measures been included in the preferred option/proposal? No 

As  explained  in  Section  1  of  this  report,  the  TTBER  and  Guidelines  do  not  create 
obligations  for  businesses.  The  competition  law  obligations  of  businesses  in  relation  to 
technology  transfer  agreements  derive  from  Article 101 TFEU.  The  TTBER  and 
Guidelines provide a simplified set of rules to help businesses to assess the compliance of 
their technology transfer and related agreements with Article 101. 

CONTRIBUTION TO THE 35% BURDEN REDUCTION TARGET FOR SMES 

Are  there  any  administrative  cost  savings  relevant  for  the  35%  burden  reduction 
target for SMEs? 

As set out in Section 3 of this Annex and in Sections 6.1.2, 6.2.2 and 6.3.2 of this report, 
the  initiative  is  expected  to  reduce  the  costs  incurred  by  SMEs  for  assessing  the 
compliance  of  their  technology  transfer  agreements  with  EU  competition  law.  See 
Section 3 of this Annex for estimates of the level of the cost reductions.  

99 

 
 
 
 
 
ADDITIONAL INFORMATION  

The  impacts  of  the  initiative  on  SMEs  are  described  in  Sections 3  and  4 of  this  Annex 
and  in  Sections  2.3  (compliance  assessment  costs  and  influencing  business  strategies), 
6.1.2  (compliance  assessment  costs),  6.1.3  (competitiveness),  6.2.2  (compliance 
assessment  costs),  6.2.3  (competitiveness),  6.3.1  (competition  on  the  market),  6.3.2 
(compliance assessment costs) and 6.3.3 (competitiveness) of this report.  

Replies of SMEs and mid-caps to the survey conducted at the reality check 
workshop 

As explained in Annex 2 above, participants in the reality check workshop were surveyed 
regarding  the  time  and  resources  that  they  incur  to  assess  the  compliance  of  their 
technology transfer agreements with EU competition law. 

Of the 24 respondents to the survey question about business categories325, 9 respondents 
(37%) categorised themselves as SMEs (3 micro SMEs, 2 small SMEs, 2 medium-sized 
SMEs  and  2  respondents  categorised  themselves  as  small  mid-caps  (see  Figure  1 
below)326.  

Figure 1: Respondents by size (SMEs and mid-caps) 

8%

8%

13%

8%

Micro SME  (<10 employees and turnover ≤ €2m or balance 
sheet ≤€2m)

Small SME (<50 employees and turnover ≤ €10m or balance 
sheet ≤€10m)

Medium-sized SME (<250 employees and turnover ≤€50m or 
balance sheet ≤€43m)

Small mid-cap (<750 employees and turnover ≤ €150m or 
balance sheet ≤€129m)

Among SMEs, 1 respondent did not sign any agreements, 3 respondents signed between 
1 and 10 licensing agreements per year on average, 2 respondents signed between 11 and 
20  licensing  agreements  per  year  on  average  and  1  respondent  signed  more  than  100 
agreements (see Figure 2 below). 

325  See Annex 2, Section 2.3, question 2 “If you answered "Business" in Q.1, please specify the size of your 

business?”. 

326 It should be noted that not all the respondents to this question categorised themselves as businesses in a 

previous question.  

100 

 
 
 
 
Figure 2: On average, how many technology licensing agreements does your 
organisation sign or advise on per year? 

N/A
11%

None
11%

More than 100
11%

21-100
11%

1-10
34%

11-20
22%

None

1-10

11-20

21-100

More than 100

N/A

Concerning  the  time  and  resources  spent  on  assessing  the  compliance  of  technology 
licensing agreements with EU competition law (average cost per agreement), 3 of SMEs 
spent  more  than  5  person-days,  2  SMEs  spent  between  3  and  5  person-days  and 
1 respondent less than 1 person-day. 3 SMEs replied that the question was not applicable 
(see Figure 3 below). 

Figure 3: How much time and resources does your organisation spend on assessing the 
compliance of licensing agreements with EU competition law (average cost per 
agreement)? 

Less than 1 
person-day
11%

N/A
33%

Between 1 
and 3 
person-days
0%

Between 3 
and 5 person-
days
34%

More than 
5 person-
days
22%

Less than 1 person-day

Between 1 and 3 person-days

Between 3 and 5 person-days More than 5 person-days

N/A

101