Client Alert: Updating the Rules of Innovation: The Revised EU Framework for Technology Transfer Agreements
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Technology transfer agreements govern the licensing of intellectual property (“IP”) rights, including patents, know-how, and software. They are generally considered to be pro-competitive and are assessed under a special European Union (“EU”) competition law framework enshrined in the original Technology Transfer Block Exemption Regulation (“TTBER”),[1] which entered into force on 1 May 2014 and expired on 30 April 2026. The TTBER provides for a “safe harbour” for licensing agreements that meet certain conditions, thereby exempting them from Article 101(1) of the Treaty on the Functioning of the EU (“TFEU”).
On 16 April 2026, following a four-year review, including a public consultation, the European Commission (“Commission”) adopted the revised Technology Transfer Block Exemption Regulation (“Revised TTBER”) and accompanying Guidelines (“Revised Guidelines”).[2] The revised framework, effective from 1 May 2026, updates the EU competition law rules governing technology licensing, taking into account evolving market realities in fast-paced industries, particularly in the digital and data-driven sectors. Although the overall regime has largely remained the same, the revisions introduce targeted clarifications and adjustments to address recent developments, including the growing importance of data and the negotiation and conclusion of technology transfer agreements through licensing negotiation groups (“LNGs”). The Revised Guidelines also seek to codify the case law of the Court of Justice of the EU (“CJEU”) on pay-for-delay patent settlements. We discuss the most important changes below.
Key Changes
1. MARKET SHARE THRESHOLDS: REFINEMENTS TO THE TTBER’S SAFE HARBOUR
The Revised TTBER has retained the market share thresholds of a combined market share of 20% for agreements between competitors and an individual market share of 30% for agreements between non-competitors to benefit from the block exemption.[3] It introduces two commercially meaningful refinements.
First, it clarifies that a technology that has not yet generated any sales of products is considered to have zero market share, thus automatically benefiting from the block exemption.[4] This is a useful practical development, considering that market shares are ordinarily calculated by reference to sales of products incorporating the licensed technology, while technology markets are often characterised by early-stage or pre-commercial licensing arrangements where reliable data is either unavailable or insufficient for assessing market power.
Second, it extends the grace period from two to three years.[5] This preserves the benefit of the block exemption even in cases where the parties’ market shares temporarily exceed the applicable thresholds during the term of the agreement and brings the Revised TTBER more closely in line with the Vertical Block Exemption Regulation (“VBER”).[6] This amendment better reflects market reality in dynamic, high-tech industries, where competitive positions may shift rapidly and short-term market strength does not necessarily reflect durable market power.
2. DATA LICENSING AT THE FOREFRONT OF THE REVISED FRAMEWORK
One of the most significant developments is that the Revised Guidelines articulate, for the first time, a structured approach to assessing data licensing agreements under Article 101 TFEU, reflecting the market reality of data-driven industries. In particular, the Revised TTBER now covers data licensing agreements where the licensed data qualifies as one of the technology rights defined in Articles 1(1)(b), 1(1)(i), and 2(3) of the Revised TTBER. These include, inter alia, production know-how and the licensing of data embedded in databases protected under the Database Directive,[7] whether through copyright or sui generis database rights. By contrast, data falling outside the categories identified by the Revised TTBER is subject to a case-by-case assessment. This approach reflects both the heterogeneity of data assets and their varying competitive significance.
Moreover, the Revised Guidelines analyse data licensing within the broader EU competition and data regulatory landscape. For instance, they refer to the Horizontal Guidelines[8] in scenarios involving exchanges of commercially sensitive information between competitors, and clarify that data sharing agreements governed by the Data Act,[9] which establishes a harmonised framework for access to and use of data generated in the EU, will, in principle, be regarded as compatible with Article 101 TFEU.
The Commission’s decision to treat certain forms of data as technology rights for the purposes of the Revised TTBER represents a novel but pragmatic approach. This is especially pertinent in sectors such as artificial intelligence (“AI”) and biotechnology, in which access not only to traditional IP rights but also to data is increasingly a key competitive parameter. However, it remains to be seen how the Revised TTBER will interact in practice with other EU regulations pertaining to data. For instance, the Data Act (Recital 112), in line with its objective of facilitating data access and sharing, states that machine-generated data should not benefit from sui generis database protection. By contrast, the Revised TTBER is largely premised on the licensing of data protected by IP rights, including copyright or sui generis database rights. Since machine-generated datasets lack such protection, related licensing agreements may not benefit from the Revised TTBER’s safe harbour. This highlights a potential tension between the Data Act’s openness objective and the Revised TTBER’s safe harbour. Further guidance from the Commission may be necessary as these regimes operate in parallel.
3. FURTHER GUIDANCE ON TECHNOLOGY POOLS
Technology pools are arrangements whereby two or more parties aggregate their technologies into a package that is subsequently licensed to the contributors to the pool and/or third parties. Technology pools remain outside the scope of the Revised TTBER, which applies only to bilateral technology transfer agreements.[10] Nevertheless, the Revised Guidelines provide more detailed and prescriptive guidance on technology pools, aimed at enhancing legal certainty.
In particular, the Revised Guidelines expand the seven cumulative conditions set out in the 2014 Guidelines under which technology pools may be presumed to fall outside the scope of Article 101 TFEU, namely, (i) open participation in the pool; (ii) inclusion of only essential technologies; (iii) limited exchange of sensitive information; (iv) non-exclusive licensing; (v) fair, reasonable and non-discriminatory (“FRAND”) licensing; (vi) the right to challenge validity and essentiality; and (vii) freedom to develop competing technologies. They introduce an eighth condition with the aim of enhancing transparency. Specifically, technology pool operators are now required to disclose key information on the pooled technologies to both prospective and existing licensees, including, at a minimum, patent or patent application numbers, where publicly available, and the relevant countries of registration.[11] The Revised Guidelines also impose stricter essentiality requirements, with patent pool operators now having to disclose the methodology used to assess the essentiality of the licensed technologies, including its scope, content, and selection criteria.[12] Operators must also regularly review their essentiality assessments and amend existing licensing arrangements in the event that certain technologies cease to be essential over time, including by removing non-essential technologies and/or reducing royalties. Finally, the Revised Guidelines offer further clarification on the requirement to license pooled technologies on FRAND terms.[13] This obligation now applies both to the licensing framework as a whole and to individual licences granted by the pool. Double dipping is now expressly prohibited, ensuring that licensees are not required to pay multiple times for the same technology rights.[14]
With the revised framework raising the bar on disclosure and compliance expectations for technology pool operators, businesses are likely to face more demanding due diligence requirements when participating in, or licensing from, patent pools. This may also result in closer scrutiny of royalty structures and a need to reassess existing licensing arrangements to ensure FRAND compliance and avoid double payment risks.
4. LICENSING NEGOTIATION GROUPS: EVOLVING EU GUIDANCE AGAINST THE BACKDROP OF TRANSATLANTIC DIVERGENCE
Another newly added, and somewhat controversial, aspect of the Revised Guidelines concerns LNGs, namely arrangements under which groups of technology implementers jointly negotiate licences for technology rights, most notably patents, with right holders. Given their relative novelty and the limited enforcement experience to date, the Commission has adopted a cautious and evolving approach to their assessment under EU competition law. The Commission’s draft Guidelines published in September 2025 envisaged a formal safe harbour under which LNGs meeting specified conditions would be presumed compliant; this approach has not been retained in the final text. Instead, the Revised Guidelines set out tailored, effects-based guidance on the circumstances in which LNGs may be compatible with Article 101 TFEU. This reflects the Commission’s view that a formal safe harbour may fail to adequately capture the effects of LNGs on the competitive process, considering their increasing significance in modern markets and the need for appropriate safeguards. The revised framework purports to address both the pro-competitive and anti-competitive risks associated with such arrangements and distinguishes between “genuine” LNGs, which may benefit from a presumption of lawfulness, and arrangements that risk constituting buyer cartels. It also provides a structured analytical framework for assessing potential restrictive effects in both upstream licensing markets and downstream product markets.
The Commission’s approach to LNGs reflects a broader regulatory development in the EU. In June 2024, the German Federal Cartel Office issued a comfort letter supporting the establishment of the Automotive Licensing Negotiation Group, subject to specific conditions.[15] This approach was subsequently adopted in the Commission’s informal guidance issued in July 2025 indicating that the arrangement was likely compatible with EU competition rules.[16] More recent developments, however, point to a growing divergence between enforcement approaches in Europe and the United States (“U.S.”). In March 2026, the same automotive LNG came under scrutiny by the U.S. Department of Justice (“DoJ”), which is assessing whether the arrangement could raise concerns under U.S. antitrust law, including whether it may amount to coordinated purchasing behaviour.[17] If these concerns are confirmed, they would signal an increasingly cautious U.S. stance towards joint licensing arrangements relative to the EU approach.
Given the risk of divergent outcomes in the EU and the U.S., companies operating on a global scale and considering participation in LNGs should ensure that governance frameworks, documentation, and competitive safeguards are sufficiently robust to withstand review under both EU and U.S. antitrust regimes.
5. CODIFICATION OF THE CJEU CASE LAW ON PAY-FOR-DELAY SETTLEMENTS
The Revised Guidelines also seek to consolidate the CJEU case law on pay-for-delay patent settlements, aligning the revised framework with recent jurisprudence and the Commission’s enforcement practice.[18] By introducing a new sub-section, they reflect the approach established in Generics,[19] under which identifying a restriction of competition by object requires determining the underlying rationale of the agreement. In this context, as confirmed in Servier[20] and Teva,[21] licensing arrangements forming part of settlement agreements may be characterised as restrictive by object where value transfers between the parties can only be explained by their commercial interest not to compete on the merits. It is also necessary to assess whether the net gain resulting from such transfers is sufficiently large to act as an incentive for the generic undertaking to refrain from market entry. Notably, it is not required that the net gain exceed the profits that could have been obtained from successfully challenging the patent. This approach appears to sit somewhat uneasily with the Revised TTBER, which does not classify pay-for-delay settlements as hardcore restrictions. Arguably, this may give rise to a degree of legal uncertainty, as the assessment of such arrangements remains inherently fact-specific and must be carried out on a case-by-case basis, taking into account the full legal and economic context of each agreement.
6. REFINED DEFINITIONS
Revisions to Article 1 of the Revised TTBER introduce explicit definitions of “active” and “passive” sales. This development brings the Revised TTBER into closer alignment with the framework already established under the VBER. This change enhances legal certainty for businesses operating under multiple block exemptions.
What is more, the definition of “competing undertakings” has been slightly rewritten. Rather than relying on a hypothetical price-cost test akin to a “small but significant and non-transitory increase in price” (“SSNIP”) framework, which assesses whether entry would be likely following a small and permanent price increase, the concept is now more closely aligned with the Horizontal Guidelines, focusing on whether potential competitors are likely to exert competitive pressure on incumbents within a sufficiently short timeframe. Although incremental, the change captures a broader range of competitive relationships.
7. TRANSITIONAL PERIOD
A one-year transitional period applies from 1 May 2026 to 30 April 2027 for agreements already in force as of 30 April 2026. During this period, arrangements that were structured in accordance with the original TTBER but do not satisfy the requirements of the Revised TTBER will continue to enjoy block exemption treatment. This temporary grandfathering is intended to facilitate adjustment to the updated framework. Nonetheless, undertakings should promptly review existing agreements and prepare for any necessary amendments well before the end of the transition period.
Conclusion
The Revised TTBER confirms a broadly stable EU framework for technology licensing, reflecting incremental evolution rather than radical structural change, with heightened regulatory focus on data-driven and collaborative licensing models.
Companies should take advantage of the transitional period to identify and assess technology transfer agreements extending beyond 30 April 2027 and consider any amendments and early renegotiation, where necessary. Licensing portfolios should be reviewed comprehensively, with particular attention to hybrid IP/data structures, which are increasingly likely to fall within the revised framework. This is particularly relevant for AI- and data-intensive use cases, where EU competition law, the Revised TTBER and Guidelines, as well as other EU rules concerning data, interact more closely. Companies should also update and closely monitor their market shares and related calculation methodologies in light of the Revised TTBER’s zero market share treatment for early-stage and pipeline technologies, and the extended grace period, all of which may affect safe harbour access. Participation in technology pools and LNGs should likewise be reassessed in light of enhanced transparency obligations, stronger FRAND expectations, and heightened scrutiny of coordination risks.
Finally, businesses engaged in cross-border licensing should be aware of the diverging regulatory and enforcement approaches in the EU, the U.S., as well as the United Kingdom (“U.K.”), which also replaced its TTBER framework with the Technology Transfer Agreements Block Exemption Order effective 1 May 2026.[22] While broadly aligned with the EU regime, the new U.K. framework introduces certain differences, including a qualitative assessment of competitive effects and an expanded scope of protected technology rights to cover database rights. A fragmented regulatory landscape increases the risk of divergent treatment of the same or similar licensing arrangements, thus necessitating separate jurisdictional assessments.
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Marixenia Davilla
Partner
Brussels
Marixeniadavilla@quinnemanuel.com
Tel: +32 2 416 50 13
Evangelia Petsa
Associate
Brussels
evangeliapetsa@quinnemanuel.com
Tel: +32 2 415 50 54
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[1] 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 (2014). See also 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 (2014) (“2014 Guidelines”).
[2] Press Release, Commission updates EU competition rules for technology licensing agreements, 16 April 2026, available at https://ec.europa.eu/commission/presscorner/detail/en/ip_26_809.
[3] Revised TTBER, art. 3.
[4] Revised TTBER, Recital 13 and art. 8(d).
[5] Revised TTBER, art. 8(e).
[6] 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 (2022).
[7] 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 (1996).
[8] 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 (2023) (“Horizontal Guidelines”).
[9] 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).
[10] Revised TTBER, art. 1(1)(c).
[11] Revised Guidelines, para. 286(b).
[12] Revised Guidelines, para. 286(c).
[13] As outlined at para. 458 of the Horizontal Guidelines. See also Revised Guidelines, para. 286(f).
[14] Revised Guidelines, para. 286(f).
[15] Press Release, BMW, Mercedes, Thyssenkrupp and VW can negotiate jointly for the acquisition of certain technology licences. 10 June 2024, available at https://www.bundeskartellamt.de/SharedDocs/Meldung/EN/Pressemitteilungen/2024/10_06_2024_ALNG.html.
[16] Press Release, Commission provides guidance on the creation of a licensing negotiation group in the automotive sector for the licensing of standard essential patents. 9 July 2025, available at https://ec.europa.eu/commission/presscorner/detail/en/ip_25_1768.
[17] See https://www.iam-media.com/article/antitrust-fault-lines-will-licensing-negotiation-groups-reshape-sep-licens-ing.
[18] Revised Guidelines, paras 257 et seq.
[19] Case C-307/18, Generics (UK) and Others, EU:C:2020:52, paras 60 et seq.
[20] Case C-176/19 P, Commission v Servier and Others, EU:C:2024:549, paras 104 and 178-179.
[21] Case C-2/24 P, Teva Pharmaceutical Industries and Cephalon v Commission, EU:C:2025:825, para. 67. See also Case C-591/16 P, Lundbeck v Commission, EU:C:2021:243, para. 114.