The European Commission´s revised Technology Transfer Block Exemption Regulation (TTBER) and the accompanying guidelines (Guidelines) will enter into force on 1 May 2026. While leaving the architecture of the old (2014) TTBER largely intact, the update responds to pressure points that had become increasingly difficult to ignore: Data-driven licensing models, collective negotiation dynamics, and uncertainty around market-share calculations in technology markets. This post will walk you through the main changes and share some additional thoughts.
Regular readers of this blog will recall that, back in 2024, I already blogged about the European Commission´s evaluation of the TTBER, which was published in a staff working document at the time (see here). In this evaluation, the Commission saw room for improvement in the following areas:
- Dealing with practical difficulties in applying the market share threshold to technology markets
- Broadening the scope to cover the licensing of data and data rights
- Looking closer at the rules regarding technology pools to ensure that only compliant pools benefit from the safe harbour
- Considerations on whether the Commission should provide guidance on the assessment of licensing negotiation groups (LNGs)
With the revised TTBER and Guidelines, it is now worth asking whether the Commission has followed up on its findings.
Continuity with adjustments
At first glance, continuity dominates. The revised TTBER retains the familiar market-share thresholds, i.e., technology licensing agreements can benefit from a safe harbour under the EU’s antitrust rules where the market shares of the relevant companies do not exceed 20% for agreements between competitors and 30% for agreements between non-competitors. The same goes for the classic list of hardcore restrictions that prevent an agreement from benefitting from the safe harbour. Price-fixing, output limitations and market allocation therefore remain firmly outside of the safe harbour.
An interesting development lies in the clarification to address long-standing practical problems in technology markets: The TTBER now explicitly states that technologies that have not yet generated sales should be considered to hold a market share equal to zero (and will therefore fall within the threshold). This is particularly relevant for R&D-driven environments, where the absence of sales data previously made the application of the TTBER unnecessarily complicated.
The revised Guidelines also revisit the treatment of technology pools, which are arrangements to bundle technology rights for licensing to contributors to the pool and/or third parties. The soft safe harbour for technology pools remains in place, meaning that, provided that the conditions are met, the Commission generally assumes (“soft” because it is only assumed, not a legally binding exemption) that the EU´s cartel prohibition (Art. 101 TFEU) has not been infringed. However, the Commission has tightened and clarified the conditions under which the soft safe harbour applies, including the pool being required to disclose both the individual rights included in the pool and the methodology used by the pool to assess the essentiality (which is a mandatory requirement for the safe harbour) of the pooled technology rights.
Data licensing: A cautious expansion
One of the main novelties of the reform is the introduction of a dedicated section on data licensing in the revised Guidelines. Rather than extending the scope of the TTBER to data as such, the Commission has opted for a more nuanced approach, while also stating that the licensing of databases protected by copyright or the EU database right (a special form of protection under EU law for the content of databases, also called EU sui generis right) is generally pro-competitive:
- Where licensed data qualifies as an “existing technology right” (as defined in the TTBER), most notably in the form of production know-how, the TTBER can apply in the usual way.
- For data types that most closely resemble the technology rights covered by the TTBER, e.g., databases protected by copyright, the Commission will apply the principles of the TTBER and Guidelines when assessing related licensing arrangements.
- For other types of data licensing, a case-by-case analysis will be required.
It will be interesting to see if these distinctions between types of data hold up in practice, but the main takeaway is that the Commission’s stance towards data licensing is positive.
Notably, the Commission also clarified that data-sharing arrangements mandated by Chapter II of the EU Data Act will generally comply with the EU’s cartel prohibition, provided they are not used to disguise restrictions of competition by object. This statement stops short of granting any form of antitrust-immunity, but it does signal a degree of alignment between sector-specific data-access obligations and antitrust enforcement.
LNGs: Guidance without a safe harbour
Another area highlighted in the 2024 evaluation was the lack of guidance on LNGs and the question on whether such guidance is necessary. LNGs mean arrangements between technology implementers to negotiate the terms of technology licenses jointly (you might remember this case on an LNG). LNGs were a highly discussed topic with some stakeholders – including US regulators – even considering LNGs as a form of buyer cartel. The Commission obviously found that guidance on LNGs was necessary and filled this gap by providing a structured framework for assessing LNGs in the new Guidelines.
First things first: The Commission did not create a safe harbour for specific types of LNGs. This is due to LNGs being a relatively new type of agreement with limited enforcement practice, and the Commission fearing the risks of over- or under-enforcement. Instead, the Commission outlined how to assess both the pro-competitive benefits and the associated risks of LNGs. In addition, it explained how to separate between genuine LNGs and buyer cartels.
The resulting message is as clear as it is unclear: LNGs are neither inherently lawful nor inherently problematic. Their compatibility with antitrust laws will hinge on several governance features, and companies planning on participating in LNGs are strongly advised to read the section on LNGs in the new Guidelines closely. Such companies should also take into account the very critical stance in the US, though, before proceeding with any plans to put an LNG in place.
Conclusion
Overall, the revised TTBER and Guidelines show that the Commission has largely acted on its own evaluation findings. Rather than amounting to a complete redesign, it chose a more incremental path – clarifying existing concepts, extending guidance to new types of arrangements, and preserving flexibility for case-by-case enforcement.
For companies active in the technology licensing area, this translates into additional guidance, but not necessarily greater certainty. With enforcement practice still thin, much will depend on how the Commission applies the revised framework in concrete cases.
Photo by Markus Winkler on Unsplash
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