Source: EURLEX
Language: en
Format: md

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| CALL FOR EVIDENCE  FOR AN IMPACT ASSESSMENT | |
| This document aims to inform the public and stakeholders on the Commission's future legislative work so they can provide feedback on the Commission's understanding of the problem and possible solutions, and give us any relevant information that they may have, including on possible impacts of the different options. | |
| Title of the initiative | Revision of the Technology Transfer Block Exemption Regulation and Technology Transfer Guidelines |
| Lead DG (responsible unit) | DG COMP – A1 – HT.6464 |
| Likely type of initiative | Commission Regulation and guidelines |
| Indicative timetable | Q2-2026 |
| Additional information | https://competition-policy.ec.europa.eu/antitrust/legislation/block-exemption-regulations/ttber\_en  EU competition rules on technology transfer agreements – evaluation (europa.eu) |
| This document is for information purposes only. It does not prejudge the final decision of the Commission on whether this initiative will be pursued or on its final content. All elements of the initiative described, including its timing, are subject to change. | |

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| A. Political context, problem definition and subsidiarity check |
| Political context |
| Article 101(1) of the Treaty on the Functioning of the European Union (‘Treaty’) prohibits agreements between undertakings that restrict competition. By way of exception, Article 101(3) of the Treaty provides that this prohibition may be declared inapplicable in respect of agreements which contribute to improving the production or distribution of goods or services or to promoting technical or economic progress, while allowing consumers a fair share of the resulting benefits, and which only impose restrictions that are indispensable for the attainment of those objectives and do not eliminate competition in respect of a substantial part of the products concerned.  Technology transfer agreements are agreements under which one company authorises another to use its technology rights to produce goods or services. Technology rights include patents, know-how, copyright in software, and certain other intellectual property rights. These agreements usually take the form of a licence.  Technology transfer agreements can improve economic efficiency by facilitating the diffusion of technology, incentivising research and development, promoting incremental innovation and generating competition in product markets. In many cases, such agreements either do not restrict competition, i.e. they fall outside the scope of Article 101(1) of the Treaty, or, where they do fall within Article 101(1), they create efficiencies that are passed on to consumers and meet the four cumulative conditions of Article 101(3) of the Treaty. However, technology transfer agreements, or certain clauses in such agreements, can also have negative effects on competition. In particular, they may facilitate collusion, restrict the ability of competitors to enter or expand in the market, or harm inter- or intra-technology competition, for example by reducing the incentives to innovate.  The Commission is empowered to adopt block exemption regulations, which define categories of agreements for which it can be presumed with sufficient certainty that they fulfil the conditions of the exception provided by Article 101(3) of the Treaty. The Commission has made use of this empowerment to adopt the Technology Transfer Block Exemption Regulation (‘TTBER’), which declares that Article 101(1) of the Treaty does not apply to certain categories of technology transfer agreements. The TTBER entered into force on 1 May 2014 and will expire on 30 April 2026. The TTBER is accompanied by Commission Guidelines on the application of Article 101 of the Treaty on the Functioning of the European Union to technology transfer agreements (‘Guidelines’).  In November 2024, the Commission completed an evaluation of the TTBER and the Guidelines with the publication of a Staff Working Document.  The revision of the TTBER forms part of the Commission’s competitiveness strategy, as outlined in the Competitiveness Compass for the EU. |
| Problem the initiative aims to tackle |
| The results of the evaluation of the TTBER and the Guidelines indicate that these instruments are valued by stakeholders, have overall met their objectives and remain largely relevant. In particular, they ensure that only agreements that meet the conditions of Article 101(3) of the Treaty are block-exempted, and that companies are able to self-assess the compliance of their technology transfer agreements with Article 101 with adequate legal certainty. That said, market and other developments that have occurred since 2014 have raised questions about the continued effectiveness and relevance of certain areas of the rules. In particular, the evaluation identified the following issues:  1.The increased importance of data resulting from digitalisation of the economy has made the licensing of data and/or rights in data more common. Moreover, technology transfer agreements increasingly contain provisions relating to data. However, the TTBER does not cover data licensing and the TTBER and Guidelines do not provide rules or guidance on provisions in technology transfer agreements relating to data.  2.Some companies encounter practical difficulties when they apply the TTBER’s market share thresholds for technology markets, resulting in uncertainty about whether their agreements are covered by the block exemption. These difficulties result notably from a lack of available information about the applications for which the licensed technology will be used, or about the substitutability or the market shares of third party technologies. This problem appears to arise in particular in dynamic markets characterised by a high degree of innovation. It appears that similar difficulties affect the soft safe harbour provided in point 157 of the Guidelines, which is based on the existence of at least four independently-controlled technologies that are substitutable for the licensed technology.  3.The conditions of the soft safe harbour provided in point 261 of the Guidelines for the establishment and operation of technology pools may not be fully effective in ensuring that only technology pools that fall outside the scope of Article 101(1) of the Treaty benefit from the safe harbour.  4.Licensing negotiation groups (‘LNGs’) bring together technology implementers that wish to negotiate technology licences jointly. The evaluation indicates that, under certain conditions, LNGs can create efficiencies, notably by reducing transaction costs, but can also raise competition concerns, for example they may lead to downstream collusion between the participating implementers. However, the rules do not currently provide guidance on the competition law assessment of LNGs. |
| Basis for EU action (legal basis and subsidiarity check) |
| Legal basis |
| The Commission adopted the TTBER on the basis of Council Regulation No 19/65/EEC on application of Article 85(3) of the Treaty to certain categories of agreements and concerted practices (“Empowerment Regulation of 1965”). |
| Practical need for EU action |
| Article 3 of the Treaty provides that the Union shall have exclusive competence in the establishing of the competition rules necessary for the functioning of the internal market. The TTBER ensures a harmonised approach to the competition law assessment of technology transfer agreements throughout the Union. |
| B. Objectives and policy options |
| The objectives of the TTBER and Guidelines are (i) to ensure effective protection of competition, in particular by exempting only those technology transfer agreements for which it can be assumed with sufficient certainty that they meet the conditions of Article 101(3) of the Treaty and (ii) to provide adequate legal certainty for companies. These objectives take account of the need to simplify administrative supervision and the legislative framework to the extent possible, in particular by providing a common framework for the Commission, National Competition Authorities (‘NCAs’) and national courts to assess technology transfer agreements. This initiative aims to ensure that the TTBER and Guidelines continue to meet these objectives.  In the areas for which the evaluation indicated that a revision of the TTBER and Guidelines may be warranted, the initiative will explore policy options for improving those instruments, while ensuring the compliance of technology transfer agreements with Article 101 of the Treaty. The policy options must respect the limits imposed by the Empowerment Regulation of 1965, which defines the powers of the Commission to adopt block exemption regulations for technology transfer agreements, namely agreements to which only two undertakings are party relating to the acquisition or use of industrial property rights or rights to use methods of manufacture or knowledge relating to the application of industrial processes.  The baseline scenario against which the proposed options will be assessed is the maintenance of the TTBER and the Guidelines as they stand today.  The policy options currently identified are the following:  A)Absence of rules or guidance on data-related provisions in technology transfer agreements  Option 1: no change to the TTBER. Under this option, guidance could nonetheless be provided in the Guidelines on the factors that the Commission will take into account when it assesses data-related provisions in technology transfer agreements.  Option 2: widen the scope of the TTBER by expanding the definition of technology rights to include certain categories of data or rights in data and provide further guidance in the Guidelines.  B)Practical difficulties in the application of the TTBER market share thresholds for technology markets  Option 1: No change to the TTBER. Under this option, Article 3 (Market share thresholds) and Article 8 (Application of the market share thresholds) of the TTBER would remain unchanged, but changes to the conditions of the soft safe harbour in point 157 of the Guidelines could still be considered.  Option 2: Amend the TTBER by either (a) removing the market share threshold for relevant technology markets, leaving only the threshold for relevant product markets, or (b) replacing the current market share threshold for technology markets, for example with a condition based on the existence of a certain number of other independently controlled technologies that are substitutable for the licensed technology, similar to the soft safe harbour currently provided in point 157 of the Guidelines. Related guidance would be provided in the Guidelines.  In addition to the above policy options, the Commission will explore the possibility of revising the Guidelines to address the issues set out in Section A above regarding the guidance on technology pools and the current lack of guidance on LNGs. In particular, it will explore whether the conditions of the soft safe harbour for technology pools in point 261 of the Guidelines should be adapted and whether guidance should be provided for the assessment of LNGs.  The Commission also aims to update the TTBER and Guidelines to incorporate in the Guidelines recent case law of the Court of Justice of the European Union, including in relation to patent litigation settlement agreements and pay-for-delay agreements [1](#footnote3) . Furthermore, to ensure coherence, the Commission intends to align, where appropriate, certain provisions of the TTBER with equivalent provisions of the recently revised block exemption regulations for vertical agreements and for horizontal agreements [2](#footnote4) .  Lastly, the Commission will explore the possibility of simplifying and clarifying the rules where possible, in particular in areas where stakeholders raised issues of complexity or lack of clarity during the evaluation. These include for example the guidance on potential competition, field of use restrictions, and the definition of know how. |
| C. Likely impacts |
| Likely economic impacts  A revision of the TTBER and the Guidelines is likely to have an impact on the objective of ensuring effective competition, on compliance costs for companies, on innovation and on consumers.  The policy options relating to a possible extension of the scope of the TTBER and/or the provision of guidance to cover the licensing of certain categories of data or data rights may give companies more flexibility to conclude technology transfer agreements, thereby contributing to the diffusion of technology and promoting innovation and product market competition, to the benefit of consumers.  The policy options aimed at addressing practical difficulties encountered by companies (including SMEs) in applying the TTBER’s market share thresholds may increase legal certainty for companies, thereby reducing their compliance costs. The possible provision of guidance on LNGs and the simplification or clarification of complex or unclear areas of the Guidelines could have a similar positive impact on legal certainty and compliance costs. Any such increases in legal certainty would also reduce the administrative burden of applying Article 101 of the Treaty to technology transfer agreements for the Commission and NCAs.  Likely social impacts  The initiative is not expected to have a direct social impact.  Likely environmental impacts  The initiative is not expected to have a direct environmental impact, however where projects pursuing environmental sustainability goals involve transfers of technology between companies, the initiative may have a positive environmental impact.  Likely impacts on fundamental rights and equality  The initiative is not expected to have an impact on fundamental rights or equality.  Likely impacts on simplification and/or administrative burden  The TTBER provides a simplified set of rules for companies to self-assess the compliance of technology transfer agreements with Article 101 of the Treaty. The TTBER does not impose any reporting obligations on companies. The policy options that envisage extending the scope of the TTBER to cover certain categories of data or data rights and addressing practical difficulties encountered by companies when they apply the TTBER’s market share thresholds may further reduce the costs of self-assessment for companies. |
| D. Better regulation instruments |
| Impact assessment |
| The revision of the TTBER and Guidelines will be informed by an Impact Assessment between Q1-2025 and Q1-2026.This will analyse in detail the proposed policy options. |
| Consultation strategy |
| The Commission aims to ensure that all relevant stakeholders have the opportunity to express their views on the proposed policy options.  The stakeholders primarily concerned by the revision of the TTBER and Guidelines are companies operating in the EU that engage in the licensing of industrial property rights (including right holders and licensees), as well as law firms and consultancies that advise these companies on matters relating to intellectual property, licensing and competition law. Other interested stakeholders include academics who carry out research in these fields. National competition authorities of the Member States are also concerned, as they may apply the TTBER and Guidelines in their enforcement work.  To gather feedback on the proposed policy options, the Commission is launching, in parallel to this Call for Evidence, a 12-week open public consultation. The consultation questionnaire will be published on the Commission’s Have Your Say website in the three working languages of the Commission (English, French and German). Stakeholders may reply in any of the 24 official EU languages. The contributions received will be published on Have Your Say, together with a factual summary of the main findings. The contributions will also be published on the dedicated webpage on the website of the Directorate-General for Competition.  The Commission will consult the competition authorities of the EU Member States via the working groups of the European Competition Network and bilaterally where appropriate.  The Commission may also commission expert studies and organise stakeholder workshops focusing on particular issues, also depending on the feedback received from other consultation activities.  The Commission will publish a draft revised TTBER and draft revised Guidelines for public consultation in the summer of 2025. |
| Why we are consulting? |
| The Commission seeks the views of stakeholders on potential changes to the TTBER and Guidelines. |
| Target audience |
| The stakeholders likely to be interested by the initiative include companies operating in the EU that engage in the licensing of industrial property rights (including right holders and licensees), law firms and consultancies that advise such companies on technology licensing, intellectual property law and competition law, as well as academics who carry out research in these fields and technology transfer offices. |

:   [(1)](#footnoteref3)
       An agreement between a manufacturer of branded medicines and a manufacturer of generic medicines under which the latter agrees to delay its entry on the market in return for payments or other transfers of value from the former.
:   [(2)](#footnoteref4)
       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, p.4, Commission Regulation (EU) 2023/1066 of 1 June 2023 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to certain categories of research and development agreements, OJ L 143, 2.6.2023, p.9, Commission Regulation (EU) 2023/1067 of 1 June 2023 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to certain categories of specialisation agreements, OJ L 143, 2.6.2023, p.20.

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