European Commission revises rules on technology transfer agreements

On April 16, the European Commission adopted Regulation (EU) 2026/877—the revised Technology Transfer Block Exemption Regulation (“TTBER”)—replacing the 2014 Regulation, which remained in force until April 30. In addition to the revised TTBER, which has been in force since May 1, the European Commission also adopted accompanying Guidelines that further elaborate on the content of the regulation and the Commission’s interpretation of it.

Block exemption regulations (“BERs”) set out the criteria under which certain agreements between undertakings may be exempted from the general prohibition on anticompetitive agreements as specified in Article 101 of the Treaty on the Functioning of the European Union (“TFEU”). Exemptions currently extend to horizontal R&D and specialization agreements, as well as vertical agreements. Complementary guidelines often accompany BERs to explain the Commission’s approach to interpretation and enforcement. For example, the guidelines on horizontal agreements also address other types of competitor agreements, such as joint production, marketing and purchasing agreements.

Technology transfer agreements authorize one company to allow another to use specific technology rights, such as patents and utility models, for producing goods or services. These agreements typically involve exclusive or nonexclusive licenses.

Key developments in the TTBER

The revised TTBER and its Guidelines uphold the conventional framework for such legal instruments. Specifically, the TTBER exempts agreements from Article 101 of the TFEU under a “safe harbor” when two cumulative conditions are met. The parties to the technology transfer agreement, whether through a license or assignment of rights, must not have a joint market share above 20% if they are competitors. If they are not competitors, each undertaking must not have a market share above 30%. The agreement must avoid particularly serious hardcore restrictions, such as resale price fixing or market or customer sharing.

The TTBER introduces significant updates, expanding its scope to cover new market practices, while clarifying and simplifying certain concepts. Key changes include the following:

• Broadened scope: The TTBER now encompasses data licensing agreements in two contexts: When licensed data qualify as “know-how” or fall within the definition of “technology rights” under the TTBER; Where data licensing constitutes a component of a technology transfer agreement directly tied to producing or selling contract products.

• Simplified market share calculation: Market share is now determined based on the sales of contract products produced using the licensed technology rights in the pertinent product and geographic market. Consequently, technologies without generated sales will have a market share of 0%.

• Technology pools: Agreements under which two or more undertakings license a technology package collectively to pool members and third parties, either directly or through an intermediation platform, fall outside the TTBER’s “safe harbor” due to potential anticompetitive concerns. However, as technology pools may yield procompetitive outcomes, the Guidelines assist companies with assessing compliance with competition law.

• Licensing negotiation groups: The Guidelines establish a specific approach for so-called licensing negotiation groups (“LNGs”). These are agreements among various implementers of the same technology that decide to jointly negotiate licensing terms with technology holders. This issue is sensitive because some undertakings participating in an LNG may compete in downstream markets. For that reason, the TTBER Guidelines weigh the positive and negative impacts of LNGs, offering guidance on their compatibility with Article 101 of the TFEU.

Conclusion

The revised TTBER retains the foundational structure of its predecessor, while including refinements that reflect practical experience. In turn, its accompanying Guidelines expand upon key areas of analysis, particularly licensing data for production purposes, LNGs, and technology pools. Together, the TTBER and its Guidelines aim to align the regulatory framework with evolving market realities.

For further information, please email our Knowledge and Innovation Group or your usual contact at Cuatrecasas.