Last month, the European Union’s revised Technology Transfer Block Exemption Regulation (TTBER) and accompanying Guidelines came into force, replacing the previous 2014 framework.
While the changes in the new instruments do not fundamentally reshape the law, they refine and recalibrate how EU competition law applies to technology licensing. This is particularly important given the ever-growing centrality of data, standard-essential technologies, and complex licensing structures to the world economy.
The new framework:
- introduces targeted but meaningful changes in key areas, including data licensing, pools, Licensing Negotiation Groups (LNGs) and applicable market shares;
- maintains a limited safe harbor; and
- reinforces the need for businesses to actively self-assess agreements.
With only a one-year transitional period before the TTBER starts to apply to existing agreements, the coming months are critical for businesses to review existing technology licensing agreements and ensure that they comply with the new rules.
In a similar vein, the United Kingdom introduced a separate Order on the Exemption of Technology Transfer Agreements on May 1, 2026 (until now, the United Kingdom had still applied the European Union’s 2014 TTBER and Guidelines), which adds a new layer of complexity for companies operating cross-border.1
| TTBER | Guidelines |
|---|---|
| Exempts from prohibition in Article 101(1) of the Treaty on the Functioning of the EU (TFEU) certain categories of bilateral technology transfer agreements meeting specific conditions, because these agreements can be assumed to meet the conditions of Article 101(3) TFEU—the exception for agreements that create efficiencies. | Interpret and explain the TTBER and how its safe harbor operates, and how key concepts (e.g., scope, market shares, restrictions) should be applied in practice. |
Strictly limits the exemption:
|
Contain stand-alone analytical framework for individual, case-by-case assessment under Article 101 TFEU of agreements that fall outside the TTBER exemption. |
Deliberately restricts its scope, excluding:
|
Includes detailed guidance on common contractual provisions and specific arrangements such as technology pools, LNGs and settlement agreements. |
| Includes significant update for “pay-for-delay” agreements. Reflecting recent case law, the Guidelines clarify that agreements between actual or potential competitors may constitute a restriction of competition by object where the value transfer can only be explained by the parties’ shared interest in avoiding competition on the merits. |
II. Key Changes
Overall, the revisions in the new TTBER and Guidelines refine the existing framework rather than fundamentally reshape it. The following are the key changes to bear in mind:
- Data Licensing Agreements: No General Exemption. The revised Guidelines now discuss data licensing but adopt a cautious approach that does not provide legal certainty: although data licensing is recognized as generally pro competitive, the Commission has not extended TTBER coverage broadly, leaving most data licensing arrangements outside the block exemption and subject to case by case assessment under Article 101 TFEU.
- Where data take the form of databases protected under the Database Directive2 either by copyright or the European Union’s sui generis right, the TTBER and Guidelines’ principles for traditional technology transfer agreements apply by analogy.
- Information exchange as part of database licensing is not presumed to be restrictive by object, yet may still raise concerns if disproportionate (see Chapter 6 Horizontal Guidelines).
- Compliance with the European Union’s Data Act (Chapter II) does not shield parties from competition law.3 This is a key point as the scope and impact of the Data Act are likely to necessitate coordination and dialogue within industry sectors for interpretation and implementation.
- Technology Pools: Comfort Under the Guidelines, No Certainty under TTBER. Technology pools continue to benefit from a soft safe harbor under the Guidelines rather than the TTBER; in part this is because they typically are multi-party arrangements outside the TTBER’s bilateral scope.
- While maintaining the safe harbor, the Guidelines raise the bar through more stringent requirements4, notably by:
- reinforcing transparency on essentiality, requiring disclosure of the pooled rights and the methodology used to assess their essential nature; and
- imposing stricter expectations on licensing terms, including an explicit prohibition on “double dipping”5 and the extension of FRAND6 obligations to licenses granted by the pool itself, thereby increasing exposure to FRAND based challenges against the pool.
- This will further increase the complexity of the self-assessment for compliance with Article 101 TFEU, which was already a demanding exercise.
- While maintaining the safe harbor, the Guidelines raise the bar through more stringent requirements4, notably by:
- LNGs: Case-By-Case Analysis. Arrangements whereby technology implementers negotiate license terms jointly with technology owners do not benefit from an automatic exemption under the TTBER’s revised framework, reflecting the Commission’s continued caution given LNG’s novelty, limited enforcement experience in this area and potential competition risks. While the Guidelines note LNGs may generate efficiencies, the Commission deliberately refrains from introducing a formal safe harbor because of the risk that fixed rules could either miss harmful conduct or deter pro competitive arrangements. As a result, LNGs remain subject to close scrutiny under Article 101 TFEU, requiring careful structuring and ongoing self assessment.
- The revised Guidelines (Section 4.5) contain a new dedicated chapter on LNGs, including:
- Acknowledging Diverging Views. The Commission recognizes tension between technology holders, who view LNGs as potential buyer cartels/vehicles for coordinated “hold‑out,” and implementers who see reduced transaction costs and rebalanced information asymmetries.
- No Restriction By-Object. “Genuine” LNGs are distinguished from anti‑competitive buyer cartels. Transparent LNGs that disclose their membership and limit their activities strictly to license negotiations are generally not considered cartels or a restriction by object.
- Effects‑Based Assessment Remains Central. LNGs are assessed on a case‑by‑case basis, with a focus on market power and potential effects in both upstream licensing markets and downstream product markets. Risks include excessive buyer power, downstream coordination and foreclosure of non‑participants.
- Assessment Framework and Compliance Safeguards. The Guidelines set out a framework for assessing LNGs and practical measures LNGs can adopt to reduce legal risk, leaving businesses with guidance, but limited predictability compared to an exemption.
- EU Guidance, Global Risk. While the Commission has previously signaled—in the automotive context—that joint SEP license negotiations may comply with EU competition law under certain conditions,7 a US Department of Justice Antitrust Division official has questioned whether similar structures could amount to buyers’ cartels under US antitrust law8. This highlights the growing risk of regulatory divergence for globally active companies.
- Market Share Thresholds. The revised TTBER and Guidelines clarify how to calculate market shares in technology markets, addressing previous practical difficulties (e.g., Article 8 TTBER and Section 3.3.2 Guidelines). The main changes include:
- No Sales Equals No Market Share. Technologies that have not yet generated sales are deemed to have a zero-market share, facilitating access to the exemption for early‑stage and innovative technologies.9 This clarification is very welcome.
- Grace Period. The grace period for agreements exceeding market‑share thresholds is extended from two to three years, providing more legal certainty and allowing parties more flexibility as market positions evolve.
- The revised Guidelines (Section 4.5) contain a new dedicated chapter on LNGs, including:
III. How Can WilmerHale Help You?
WilmerHale has extensive experience regarding the issues raised by the TTBER and Guidelines. Our lawyers combine deep substantive competition law expertise with a practical understanding of licensing, research and development collaboration, and complex cross border arrangements.
WilmerHale regularly supports companies in a wide range of sectors in navigating both the safe harbors and the grey areas left by the TTBER and Article 101 TFEU more broadly, helping them assess risk, structure compliant agreements and respond confidently to regulatory scrutiny.
For more guidance, please contact a member of our European antitrust team.
