Table of contents

1.Introduction: Political and legal context

2.Problem definition

2.1.What are the problems?

2.2.Other areas of the rules that are not the subject of policy options

2.3.What are the consequences of the problems and who is affected?

2.4.What are the problem drivers?

2.5.How likely is it that the problems will persist?

3.Why should the EU act?

3.1.Legal basis

3.2.Subsidiarity: added value of EU action

4.Objectives: What is to be achieved?

4.1.General objectives

4.2.Specific objectives

5.What are the available policy options?

5.1.What is the baseline from which options are assessed?

5.2.Description of the policy options

5.3.Options discarded at an early stage

6.What are the impacts of the policy options?

6.1.The TTBER’s market share thresholds for technology markets

6.1.1.    Impact on competition in the market    

6.1.2.    Impact on businesses (including SMEs)    

6.1.3.    Impact on European innovation and competitiveness    

6.2.Data licensing

6.2.1.    Impact on competition in the market    

6.2.2.    Impact on businesses (including SMEs)    

6.2.3.    Impact on European innovation and competitiveness    

6.3.Licensing negotiation groups

6.3.1.    Impact on competition in the market    

6.3.2.    Impact on businesses (including SMEs)    

6.3.3.    Impact on European innovation and competitiveness    

7.How do the options compare and Preferred options

7.1.The TTBER’s market share thresholds for technology markets

7.1.1.    Effectiveness    

7.1.2.    Efficiency    

7.1.3.    Coherence    

7.1.4.    Preferred option    

7.2.Data licensing

7.2.1.    Effectiveness    

7.2.2.    Efficiency    

7.2.3.    Coherence    

7.2.4.    Preferred option    

7.3.Licensing negotiation groups

7.3.1.    Effectiveness    

7.3.2.    Efficiency    

7.3.3.    Coherence    

7.3.4.    Preferred option    

7.4.REFIT (simplification and improved efficiency)

7.5.Application of the ‘one in, one out’ approach

8.How will actual impacts be monitored and evaluated?

8.1.Data collection

8.2.Indicators and monitoring framework

8.3.Limitations and proportionality

Annex 1: Procedural information

1.Lead DG and Decide Planning references

2.Organisation and timing

3.Consultation of the RSB

4.Evidence, sources and quality

Annex 2: Stakeholder consultation (Synopsis report)

1. INTRODUCTION

2. RESULTS OF THE CONSULTATIONS

Annex 3: Who is affected and how?

1.Practical implications of the initiative

2.Summary of costs and benefits

3.Relevant sustainable development goals

Annex 4: Analytical methods

Annex 5: Competitiveness check

1.Overview of impacts on competitiveness

2.Synthetic assessment

3.Competitive assessment of the most affected sectors

Annex 6: SME check

Glossary

1.Introduction: Political and legal context

This initiative concerns the revision of the Technology Transfer Block Exemption Regulation 5  (“TTBER”) and the accompanying Technology Transfer Guidelines (“Guidelines”) 6 . The TTBER and Guidelines provide a simplified set of rules for applying competition law – in particular Article 101 of the Treaty on the Functioning of the European Union (“TFEU”) – to technology transfer agreements. These agreements typically take the form of licences, under which one party (the licensor) permits another (the licensee) to use technology rights (for example, a patent) to produce goods or services.

For a better understanding of this report, this Introduction begins by presenting the economic environment in which the initiative takes place, with a focus on the significance of intellectual property licensing in the economy of the EU (Section 1.1). It then explains the role of competition policy, including Article 101 TFEU (Section 1.2). This is followed by a description of the TTBER and the Guidelines, explaining how they facilitate the assessment of technology transfer agreements under Article 101 (Section 1.3). Lastly, the Introduction presents other relevant EU policy initiatives (Section 1.4) and discusses how technology transfer agreements are assessed under the competition laws of other major jurisdictions (Section 1.5). 

1.1.The economic environment: intellectual property licensing in the EU economy

In recent decades, worldwide competition in innovation has intensified, as shown by the increase in patenting activity and investments in intangible assets 7 . According to the World Intellectual Property Organisation, 3.7 million patent applications were filed in 2024. Together with China, the USA, Japan and Korea, Europe continues to account for a significant share of patent applications. In 2024, the European Patent Office (“EPO”) was among the top five patent offices worldwide in terms of applications received, with nearly 200,000 filings 8 . 

In that context, technology licensing enables firms to monetise their intellectual property rights (“IPRs”) and to access technologies that they cannot develop in-house 9 . Licensing can take place bilaterally (licensor-licensee) or via a technology pool or licensing platform, whereby technology rights held by multiple owners (for example, patents that are essential to comply with a standard) are assembled into a package and licensed out under a single agreement.

Although the scale of technology licensing is difficult to quantify 10 , earlier economic research provides an indication of the number and size of patent licensing agreements. One empirical survey estimates that approximately 10% of patents registered with the EPO are licensed 11 , while another places the figure at around 6% 12 . Previous studies also indicate that approximately 20% of European patent-owning firms license out their patents 13 . While technology licensing occurs in many industries, the biopharmaceutical sector is notable for the volume and economic value of licensing transactions 14 . The values of licensing agreements involving European firms vary substantially, with some patent-owning firms reporting less than EUR 100,000 in annual licensing revenues and others more than EUR 100 million 15 . Overall, the evidence suggests that licensing plays a non-negligible role in the dissemination of technology and in enabling firms to access the knowledge that they need to innovate and compete in globalised markets.

Other technological and market trends are also expected to lead to an increase in the level of licensing. These include the digitalisation of the economy 16 , the growth of the internet of things (“IoT”) 17 , which relies on technology standards to enable products to communicate with each other 18 , the growing importance of data as an input 19 , and the expanding role of artificial intelligence (“AI”) 20 . 

Access to data – including via data licensing – is of strategic importance in a wide range of economic sectors, and in particular for the training of AI models. According to an OECD study, data access and re-use could generate social and economic benefits worth between 1% and 2.5% of GDP 21 . Another study found that increasing the level of data re-use by businesses could add as much as EUR 1.4 trillion a year to the EU’s GDP by 2027 22 .

1.2.The role of competition law and Article 101 TFEU 

EU competition law aims to prevent competition from being distorted to the detriment of the public interest, undertakings and consumers 23 . Effective competition forces firms to reduce their prices, improve the quality and variety of their products, lower their costs, become more productive, and create more innovative products. Where the competitive process works well, it drives investment, innovation, productivity growth, business dynamism and employment 24 . 

EU competition law contributes to these benefits by tackling practices that weaken competition, such as cartels and other anti-competitive agreements. DG Competition’s report Protecting competition in a changing world found that rising mark-ups since 2000 may have reduced EU GDP by 5–7%, and that this reduction would have been greater (by almost 25%) in the absence of the Commission’s enforcement action against anti-competitive practices 25 . Furthermore, according to DG Competition’s 2024 Annual Report, between 2012 and 2023 the Commission’s antitrust enforcement action (including cartels) generated direct customer savings of between EUR 5 billion and EUR 9 billion per year on average, without taking into account the enforcement activity of the EU national competition authorities 26 . These savings reflect the price increases avoided as a result of enforcement actions 27 . 

A significant portion of these economic benefits can be attributed to the enforcement of Article 101 TFEU. Article 101(1) prohibits agreements between undertakings that prevent, restrict or distort competition and affect trade between Member States. Article 101(3) provides that the prohibition may be declared inapplicable in respect of agreements that are on balance efficiency-enhancing and fulfil a number of conditions, including that the agreement does not allow the parties to eliminate competition in respect of a substantial part of the products concerned  28 . 

To complement its enforcement action, the Commission issues block exemption regulations and guidelines. Block exemption regulations disapply the Article 101(1) prohibition in respect of categories of agreements that can be assumed to fulfil the conditions of Article 101(3) TFEU, thereby providing a legal safe harbour. Block exemption regulations and accompanying guidelines promote compliance with Article 101 TFEU by providing a simplified set of rules for businesses to assess the legality of their agreements. They also simplify the administration of the antitrust rules by the Commission and national competition authorities, by identifying categories of agreements and restrictions which generally do not harm competition.

1.3.The TTBER and the Guidelines

Like other agreements between undertakings, technology transfer agreements can fall within the Article 101(1) prohibition. Businesses wishing to enter into technology transfer agreements must therefore assess their compliance with Article 101 29 . 

Technology transfer agreements often generate pro-competitive effects: they facilitate the diffusion of technology, incentivise initial research and development (“R&D”), promote incremental innovation, and enhance competition in downstream product markets. However, they can also raise competition concerns. For example, they can facilitate collusion between competing firms, impede rivals’ ability to enter or expand in the market, or limit inter- or intra-technology competition by reducing incentives to innovate.

Council Regulation (EEC) 19/65 30 (“the Enabling Regulation”) empowers the Commission to adopt block exemption regulations for certain categories of technology transfer agreements, in particular “agreements to which only two undertakings are party and which include restrictions imposed in relation to the acquisition or use of industrial property rights, in particular of patents, utility models, designs or trade marks, or to the rights arising out of contracts for assignment of, or the right to use, a method of manufacture or knowledge relating to the use or to the application of industrial processes”. 

Based on the Enabling Regulation, the Commission adopted the TTBER. The TTBER applies to agreements between no more than two undertakings under which one party licenses or assigns 31 to the other party certain intellectual property rights 32  (including know-how) 33  for the purpose of producing goods or services. The block exemption provided by the TTBER is subject to certain conditions: the market shares of the parties to the agreement must not exceed certain thresholds 34 and the agreement must not include certain severe restrictions of competition (“hardcore restrictions”) 35 .

In addition to the TTBER, the Commission also adopted the Guidelines. The Guidelines explain the rationale for the provisions of the TTBER and provide guidance on how to apply them, together with practical examples. They also provide guidance on the application of Article 101 TFEU to technology transfer agreements that fall outside the block exemption 36 , as well as related agreements, such as patent dispute settlement agreements and technology pools 37 .

Together, the TTBER and the Guidelines provide a simplified set of rules for assessing the compliance of technology transfer agreements with Article 101 TFEU. It is important to note that the obligations of businesses under competition law in relation to technology transfer agreements derive from Article 101; the TTBER and Guidelines do not themselves impose obligations or sanctions. Where a technology licensing agreement does not meet the conditions of the TTBER and is not covered by the Guidelines, that does not imply that it infringes Article 101. It simply means that the parties must carry out an individual assessment, based on the Commission’s general guidelines and notices on the application of Article 101, the case law of the Union Courts and the Commission’s decisional practice. Such individual assessments are more complex and burdensome, in particular because the case law and decisional practice are case-specific and therefore not always easily transposable to other agreements or market contexts. Consequently, subject to the limits imposed by the Enabling Regulation, the greater the level of legal certainty that can be provided by the TTBER and the Guidelines, the less burdensome will be the task for businesses of assessing the compliance of their technology transfer agreements with competition law.

The TTBER entered into force on 1 May 2014 and it expires in April 2026. The Commission conducted an evaluation of the TTBER and the Guidelines in advance of the TTBER’s expiry. The evaluation found that these instruments remain relevant, as they facilitate the competition law assessment of technology transfer agreements by businesses. However, the evaluation also identified areas of the rules that do not function well, or as well as they could. It was therefore decided to revise the TTBER and the Guidelines. Section 2.1 below presents the areas of the rules that are the subject of policy options. It also outlines other areas of the rules for which amendments are proposed.

The revision of the TTBER and Guidelines contributes to the policy objective of strengthening the competitiveness of the Union, by providing effective, clear and up-to-date rules that protect competition and incentivise businesses to innovate and become more efficient, as set out in the Competitiveness Compass 38 . As also highlighted in the Competitiveness Compass, these instruments are intended to facilitate pro-competitive technology licensing, thereby encouraging technology dissemination, incentivising initial R&D, and promoting innovation. 

1.4.Other relevant EU legislation and Commission initiatives

By facilitating technology dissemination and promoting innovation, the initiative complements other important Commission’s initiatives 39 . These include: (i) the European Innovation Act 40 , which seeks to create legal framework conditions to remove barriers for bringing innovative ideas to market; (ii) the Cloud and AI Development Act 41 , which aims to strengthen the EU’s data centre capacity and digital sovereignty in the cloud sector; (iii) the EU Quantum Act 42 , which focuses on boosting research and innovation, scaling up industrial capacity, including pilot lines and a design facility, as well as reinforcing supply chains and resilience in the quantum sector; (iv) the European Research Area (ERA) Act 43 , which aims to strengthen R&D investment and foster the circulation of knowledge and talent across Europe, and (v) the revision of the Standardisation Regulation 44 , intended to strengthen the European standardisation system and safeguard Europe's leadership in developing high-quality, trusted standards.

In the specific field of data access, the Union has already enacted legislation to promote the free flow of data and create a single market for data, which is intended to ensure Europe’s global competitiveness and data sovereignty 45 . This includes the Data Act 46 , which is intended to empower consumers and businesses by giving them greater control over the data generated by their connected devices, such as cars, smart TVs and industrial machinery. It lays the foundations for a fair, innovative, and competitive European data economy.

More recently, the Commission has proposed to further refine this framework through the Digital Omnibus Regulation Proposal 47 , which aims to address issues identified in the early implementation of the Data Act, by providing additional clarity and legal certainty, while preserving the Act’s core objectives of unlocking data and fostering innovation. In addition, the Data Union Strategy 48 identifies scaling up access to data, notably for AI applications, as a strategic priority for the Union, alongside initiatives such as the European Innovation Act and the proposed Cloud and AI Development Act mentioned above. As stated in President von der Leyen’s political guidelines, access to data is not only a major driver of competitiveness, accounting for almost 4% of EU GDP, but it is also essential for productivity and societal innovations, ranging from personalised medicine to energy savings 49 . These initiatives are intended to facilitate data access and re-use, support innovation ecosystems and strengthen Europe’s technological capabilities, including for the development and deployment of AI.

1.5.Antitrust law on IP licensing in other major jurisdictions

Technology licences may cover more than one world region or may indeed be worldwide in scope. Businesses may therefore need to assess the compliance of their agreements with the antitrust rules of multiple jurisdictions. Like the EU, several other major jurisdictions provide positive guidance and safe harbours for technology licensing agreements.

The USA, China and Japan, among other jurisdictions, have published guidelines on the application of antitrust law to intellectual property licensing and SEP licensing.  The Antitrust Guidelines for the Licensing of Intellectual Property 50  issued by the US Department of Justice and Federal Trade Commission in 2017 note that IP licensing arrangements are typically welfare-enhancing, because they enable the combination of complementary factors of production, and state that restrictions in IP licensing agreements are generally assessed under the “rule of reason”, i.e. they are not unlawful per se. These guidelines also provide safe harbours for IP licensing agreements and R&D agreements between firms that do not hold market power. The Chinese competition authority (SAMR) published Anti-Monopoly Guidelines for Standard Essential Patents in 2024 51 . These guidelines aim to prevent the abuse of SEPs, protect fair competition, encourage innovation, improve economic efficiency, and safeguard consumer and public interests. The Japan Fair Trade Commission issued revised Guidelines for the Use of Intellectual Property in 2016. These guidelines provide guidance for an effects-based analysis, as well as limited safe harbours. The United Kingdom inherited the TTBER from the EU when it left the Union. The UK’s Competition and Markets Authority (CMA) is currently revising the UK version of the TTBER and has recommended that the UK government adopts a revised block exemption which resembles the proposed revised TTBER.

2.Problem definition

2.1.What are the problems?

The evaluation found that market and other developments that have occurred since the adoption of the TTBER and Guidelines in 2014 raise questions about the effectiveness and relevance of the rules in six areas 52 . Three of those areas are the subject of policy options that are impact-assessed in this report. The other three areas are outlined at the end of this section, together with an explanation of why those areas are not the subject of policy options.

Problem 1 – Businesses find it difficult to determine whether their technology transfer agreements meet the TTBER’s market share thresholds for technology markets

The evaluation found that market participants encounter practical difficulties when applying the TTBER’s market share thresholds for technology markets 53 . The block exemption provided by the TTBER is conditional upon the parties to the technology transfer agreement holding market shares below certain thresholds. In particular, the TTBER block-exempts agreements between competing undertakings where the parties’ combined market share does not exceed 20%, and agreements between non-competitors where the parties’ individual market shares do not exceed 30%. These thresholds apply both in relation to relevant technology markets (markets for the sale of technology by licence) and relevant product markets (markets for the sale of products produced using the licensed technology). The separate thresholds for technology markets and product markets ensure that the TTBER captures the competitive effects of technology transfer agreements at the upstream (technology licensing) level and the downstream (supply of products) level. Competitive conditions may differ between the two levels, and firms may be active at one or both levels.

To apply the TTBER’s market share thresholds for technology markets, the parties’ market shares are calculated based on the presence of their technology rights in the relevant market where the contract products 54 are sold (the “footprint methodology”) 55 .  Although the TTBER itself does not mention the scenario of a new technology that has not yet generated any product sales, paragraph 90 of the Guidelines briefly notes that such technologies are considered to have a zero market share. Where the parties initially fall within the TTBER’s market share thresholds but their market shares rise above the thresholds during the life of the agreement, the TTBER provides a “grace period”, i.e. the block exemption continues to apply for two years following the year in which the thresholds are exceeded.

For technology transfer agreements that fall outside the block exemption, for example because the parties’ market shares exceed the TTBER’s thresholds, the Guidelines provide an additional ‘soft’ safe harbour. This states that if an agreement does not contain hardcore restrictions, it is unlikely to infringe Article 101 TFEU where there are at least four other independently controlled and substitutable technologies on the market (the “4+ test”) 56 .

Agreements that fall outside the block exemption because the parties’ market shares exceed the TTBER’s thresholds or which do not meet the 4+ test in the Guidelines are not presumed to infringe Article 101 TFEU. These agreements simply require a more detailed individual assessment, as explained in Section 1.3 above.

In the evaluation and impact assessment, some stakeholders reported practical difficulties in applying the TTBER’s market share thresholds for technology markets and thus in determining whether their agreements could benefit from the block exemption. Specifically, they said that it is challenging to define the relevant market and calculate market shares when technologies are at an early stage of development or commercialisation (“early licensing”). They also explained that limited data on competing technologies and uncertainty about the future commercial uptake of technologies and about their substitutability can make it difficult to define markets and calculate shares 57 . Stakeholders further highlighted that, at the early stages of technology uptake, there are often fewer than four alternative technologies present on the market. This feedback suggests that paragraph 90 of the Guidelines does not provide sufficient clarity and legal certainty on the application of the TTBER’s market share thresholds for technology markets in cases of early licensing 58 . It also indicates that the 4+ test in the Guidelines may not address the difficulties faced by stakeholders.

Problem 2 – Businesses do not know how to apply Article 101 TFEU to data licensing agreements

The evaluation found that data is increasingly important in the digital economy, and that the licensing of data has become more frequent, yet the TTBER and Guidelines do not expressly cover data or rights in data 59 . This calls into question the effectiveness and relevance of the rules 60 .

Through data licensing agreements, businesses license the data that they hold to other businesses, allowing the latter to use the data in their business activities. Data licensing enables businesses to share, access and monetise data, often in ways that are essential for innovation, market entry, and the development of interoperable products 61 . Data is however a complex asset that does not always fit easily into existing categories of technology or intellectual property rights 62 . For this reason, businesses do not know how to assess the compliance of their data licensing agreements with competition law 63 .

In the evaluation, businesses explained that they do not know whether the TTBER can apply to data licensing agreements 64 . In particular, they are unsure whether the data that they are licensing can qualify as one of the technology rights (including know-how) that are already covered by the TTBER 65 . Furthermore, stakeholders criticised the fact that the TTBER and Guidelines do not provide specific guidance on the licensing of data or datasets 66 .

Problem 3 – Businesses do not know how to apply Article 101 TFEU to licensing negotiation groups

The evaluation found that the relevance of the TTBER and Guidelines may be affected by the emergence of licensing negotiation groups (“LNGs”), for which there is currently no antitrust guidance 67 . LNGs are arrangements between technology implementers to negotiate jointly the terms of the technology licences that they wish to obtain from technology owners 68 .

Implementers consider that LNGs are capable of reducing licensing transaction costs by replacing multiple bilateral negotiations with a single multilateral negotiation 69 . They also consider that LNGs allow implementers to pool their legal and technical expertise and resources, thereby promoting more informed and balanced negotiations 70 . By contrast, technology owners consider that implementers may use LNGs to exert buyer power and drive royalty rates below competitive levels, for example by engaging in coordinated hold-outs 71 .

Although DG Competition has been informed about plans to set up LNGs in several sectors, it is not yet aware of any LNG operating on the market. Consequently, the actual impact of LNGs on technology licensing is not yet known and is debated in the academic literature 72 .

Based on DG Competition’s contacts with stakeholders and the evidence gathered in the evaluation and impact assessment, it appears that there is uncertainty among stakeholders regarding the application of Article 101 TFEU to LNGs and indeed about whether it is possible to set up and operate LNGs in compliance with competition law. It also appears that this uncertainty has led to a reluctance by implementers to set up LNGs, for fear of infringing competition law and incurring sanctions 73 .

This uncertainty is illustrated by the recent request for informal guidance made by a group of car manufacturers wishing to set up an LNG to negotiate the terms of SEPs licences for cars (the Automotive LNG or “ALNG”) 74 . The fact that the Commission decided to issue an informal guidance letter in that case 75 (only two such letters have been issued since this power was introduced in 2003) confirms that LNGs raise novel competition law issues. Although the ALNG guidance letter has been published, the letter makes clear that the guidance is limited to the facts of that case 76 . It therefore cannot be relied upon by other businesses for the assessment of other LNGs. Indeed, DG Competition has been approached informally by implementers in other sectors wishing to explore the possibility of setting up LNGs.

The problem of legal uncertainty is exacerbated by the risk of diverging regulatory approaches within the Union. The Commission shares competence to apply Article 101 TFEU with the national competition authorities (“NCAs”). Given that LNGs may involve collective negotiations between implementers and technology owners located in more than one Member State, NCAs may reach differing conclusions regarding their legality. The absence of Commission guidance on the competition law assessment of LNGs increases this risk 77 . Concretely, where an LNG consists of technology implementers based in multiple Member States and/or seeks to engage with technology owners based in multiple Member States, and the NCA of one or more of those Member States finds that the LNG infringes Article 101, this is likely to lead to the termination of the LNG throughout the Union.

As regards the scale of the problem, DG Competition has so far been informed about plans to set up LNGs in three sectors, involving 1-10 undertakings in each case. Evidence gathered during the evaluation and impact assessment indicates that implementers consider that LNGs may be useful, in particular, for the negotiation of licences of standard-essential technology and pooled technology rights. Pools and technology licensing platforms now offer technology packages targeted at several sectors, including automotive, logistics, healthcare, domestic appliances and consumer electronics 78 . It therefore appears that LNGs may be of interest for implementers in a range of economic sectors.

2.2.Other areas of the rules that are not the subject of policy options

In addition to the three problems set out in Section 2.1 above, the evaluation found that market and other developments since the adoption of the TTBER and Guidelines raise questions about the effectiveness and relevance of the rules in three other areas, namely: (i) the soft safe harbour in the guidance on technology pools; (ii) the guidance on patent dispute settlement agreements, and (iii) the coherence of certain provisions of the TTBER with equivalent provisions in other recently revised block exemption regulations 79 .

The proposed changes to these areas of the rules consist mainly of technical amendments 80 or clarifications that do not allow for the formulation of meaningful policy options. For example, regarding the soft safe harbour for technology pools, the evaluation and impact assessment confirmed the continued relevance of the soft safe harbour, but indicated that the effectiveness of some of its conditions could be improved. The proposed changes therefore further specify some of these conditions. As these changes are not the subject of policy options, they are not discussed further in this report.

2.3.What are the consequences of the problems and who is affected?

The problems described above primarily affect businesses that use the TTBER and Guidelines to assess the compatibility of their technology transfer agreements with the EU competition rules.

To the extent that, in the areas identified above, the rules do not function well or as well as they could, they do not fully meet their objectives 81 , leading, in particular, to a lack of effectiveness and efficiency 82 .

In the evaluation and impact assessment 83 , stakeholders stated that legal certainty is an important factor that leads to lower compliance costs and influences their commercial strategy.

Compliance costs for businesses consist mainly of internal resources and the cost of external advisers – notably lawyers and economists – employed to ensure that technology-related agreements comply with Article 101 TFEU. Stakeholders emphasised that these costs would increase in the absence of the TTBER and Guidelines, as the legal certainty provided by these instruments would decrease or disappear. They also indicated that the low level of legal certainty in the areas where the rules were considered to be not functioning well is primarily caused by the complexity of certain provisions, and the fact that the rules do not currently provide guidance in relation to certain emerging market practices 84 . 

However, it proved particularly difficult to obtain quantitative evidence on compliance costs, even when using targeted stakeholder surveys 85 . Although stakeholder participation in these surveys was limited, stakeholders did provide some indications of the magnitude of these costs 86 . Based on this feedback, it is estimated that: (i) assessing compliance with the TTBER typically requires between 0.25 to 6 full days per agreement 87 , giving an average of 3.125 days; and that (ii) coverage of an agreement by the TTBER and Guidelines reduces businesses’ compliance costs significantly – by an average of 33% – compared with a situation in which the assessment has to be performed solely on the basis of Article 101 TFEU and the case law 88 . The present impact assessment therefore relies primarily on qualitative evidence, in particular the qualitative feedback of stakeholders on the proposed policy options, as well as the Commission’s enforcement experience and the legal and economic literature on technology licensing. Quantitative evidence has been provided where available. 

Beyond its impact on compliance assessment costs, a low level of legal certainty can also influence firms’ commercial strategy. Economic literature shows that legal uncertainty may lead firms to delay or avoid business conduct that is pro-competitive 89 , including pro-competitive licensing agreements. This is confirmed by the evaluations of other block exemption regulations, such as the Vertical Block Exemption Regulation, where some SMEs reported that uncertainty regarding the assessment of their agreements discouraged them from pursuing these agreements altogether 90 . Clearer and more predictable competition rules can, conversely, encourage contracting, by enabling businesses to better assess their compliance with Article 101 TFEU. In addition, increased legal certainty may deter forms of cooperation that are more likely to be incompatible with competition law 91 .

As the TTBER and the Guidelines are also used by SMEs 92 , SMEs are also affected by the low level of legal certainty mentioned above. Although there was limited direct participation from SMEs in the evaluation and impact assessment (see Annex 6), other evidence suggests that greater legal certainty would also be helpful for SMEs. For instance, the Evaluation Support Study notes that, for SMEs, the cost of obtaining specialised legal advice may be too high, making simple compliance assessment tools particularly useful for them 93 . 

The difficulty of determining whether technology transfer agreements meet the TTBER’s market share thresholds for technology markets

As regards the TTBER’s market share thresholds for technology markets, the problem identified above leads to legal uncertainty and increased compliance assessment costs for businesses, particularly where technologies are at an early stage of uptake. This affects businesses that wish to enter into technology licensing agreements.

While precise quantification of the number of affected businesses and agreements is challenging, this report provides indicative estimates based on extrapolation, combining earlier economic research and a set of assumptions. The number of bilateral patent licensing agreements concerning EU patents likely to be concluded annually is estimated to lie between 1,500 and 6,000 94 . Although this estimate considers only patent licensing agreements, and may therefore be conservative 95 , it can serve as a proxy for the number of agreements that potentially fall within the scope of the TTBER and that are affected by the identified problem. These figures should however be treated with caution, providing only a general indication of the population affected by the identified problem 96 .

The main consequences of the problem can be summarised as follows. First, businesses that enter into licensing agreements must engage in market definition and market share calculations, which can be more complex when technologies are at an early stage of uptake. Building on data provided by stakeholders, the compliance assessment costs required for applying the TTBER’s market share thresholds are estimated at approximately EUR 787.5 per licensing agreement 97 . Applying this figure to the estimated population of the population of affected agreements gives total compliance assessment costs of around EUR 1,181,250–4,725,000 per year. Given the challenges of obtaining precise quantitative data, these figures should be treated with caution, providing only a general indication of the main costs incurred by businesses.

Secondly, as shown by the results of the impact assessment public consultation 98 , some businesses enter into technology transfer agreements without certainty regarding their compliance with Article 101 TFEU, or carry out an individual assessment of the agreement under Article 101, which is more complex and burdensome than assessing whether the agreement meets the conditions of the TTBER.

While it is possible that, faced with such difficulties, businesses may prefer to err on the side of caution and refrain from entering into technology transfer agreements, the magnitude of that risk appears to be limited. The majority of the respondents to the impact assessment public consultation stated that they still entered into technology transfer agreements despite encountering practical difficulties in calculating market shares 99 . This is consistent with the survey conducted for the impact assessment of the previous version of the TTBER, which indicated that legal and regulatory barriers limit technology licensing only to a limited extent 100 .

The lack of guidance for assessing the compliance of data licensing agreements

The lack of guidance in the TTBER and Guidelines on data licensing agreements creates legal uncertainty for companies that wish to enter into such agreements, which has both direct and indirect negative consequences.

First, the direct consequence for businesses is higher costs to assess the compliance of their data licensing agreements with Article 101 TFEU 101 . Indeed, the lack of guidance in the TTBER and Guidelines does not remove the general obligation of businesses to comply with Article 101. Instead, as mentioned in Section 1.3 above and earlier in this Section, businesses have to carry out a more complex individual assessment of their data licensing agreements using the Commission’s general guidelines on the application of Article 101 and the case law. The complexity of this assessment is compounded by the fact that data licensing is still a fairly recent practice and therefore there is very limited jurisprudence or decisional practice by competition authorities on this type of agreement.

On the basis of the available data, it has not been possible to measure precisely the number of data licensing agreements that are affected by this lack of guidance. It has therefore been necessary to rely on estimates and approximation 102 . On this basis, the number of bilateral data licensing agreements for production purposes entered into every year in the Union can be estimated to be of the order of a few thousand, in particular between 1,000 and 10,000.

As explained above at the beginning of this Section, stakeholders confirmed that the competition law assessment of agreements is significantly more costly where only general principles and case law can be used, compared to a situation where the TTBER and Guidelines provide guidance. In particular, the costs of assessing the compliance of an agreement 103 without the TTBER and Guidelines can be estimated at 4.66 full-time 104 days or EUR 5,600 105 . Applying this figure to the estimated population of affected agreements gives a total compliance assessment cost in the range of EUR 5,600,000–56,000,000 per year. 

Second, the lack of guidance on data licensing agreements may have indirect negative consequences, as already explained in the introduction to this Section. In particular, some businesses may decide to enter into data licensing agreements without doing a compliance assessment. This may create an increased risk of anti-competitive agreements. Conversely, the lack of guidance may make some businesses reluctant to enter into data licensing agreements. While it has not been possible to isolate the effect of the lack of guidance from the effect of other economic and regulatory considerations, it is possible that the lack of guidance may contribute to the problem of scarcity and under-use of data highlighted by the Commission’s Data Union Strategy 106 .

The lack of guidance for assessing the compliance of licensing negotiation groups

The direct consequence of the legal uncertainty resulting from the absence of guidance on the competition law assessment of LNGs is that businesses wishing to set up LNGs face higher compliance assessment costs. In particular, they are obliged to assess the compatibility of LNGs with Article 101 TFEU using only the Commission’s general guidelines on the application of Article 101, the case law and the Commission’s decisional practice 107 . As set out above, a majority of the stakeholders surveyed at the reality check workshop considered that the coverage of an agreement by the TTBER and Guidelines reduces their compliance costs significantly. These negative consequences also affect SMEs 108 . 

The legal uncertainty may also have indirect negative consequences for competition. First, businesses may establish or operate LNGs in a manner that restricts competition, for example, they may use the LNG as a vehicle to collude in downstream product markets. Second, the legal uncertainty may deter businesses from establishing or participating in LNGs. As a consequence, those businesses will not benefit from the potential pro-competitive effects of LNGs, in particular reductions in licensing transaction costs and more informed and balanced licensing negotiations 109 .

2.4.What are the problem drivers?

The dynamics of technological uptake and early licensing

Regarding the market share thresholds for technology markets, the main drivers of the problem relate to the dynamics of technological uptake 110 .  Although these dynamics are not entirely new, some recent trends may have increased the significance, or the perceived significance, of the challenges they pose for the assessment of market power, for instance, in the case of early-stage licensing, i.e. when the licensed technology has not yet generated any product sales or is still at early stage of commercialisation 111 . 

Economic research indicates that there is often a significant time lag between the date of the licensing agreement and the date at which the technology begins to generate meaningful sales in downstream product markets 112 . While methodologies exist to identify competing technologies and their competitive position at an early stage 113 , these rely on more complex assessments and data collection compared to situations where the technology has already generated significant sales. In the latter case, businesses use sales data and the actual price of competing products to calculate market shares.

Moreover, the rate of adoption and the commercial success of a technology may be subject to significant uncertainty and volatility 114 , particularly when the technology is still at an early stage of adoption. For instance, technologies at this stage may experience fluctuating market shares – including temporary spikes in demand – that are not necessarily representative of their market power, particularly in fast-growing sectors 115 . An early and temporary surge in demand may cause a company to exceed the TTBER market share thresholds even though the parties do not actually possess meaningful market power. 

However, such volatility is far from universal. The evidence shows, for instance, that significant market shares can stabilise over time, which increases the risk of anti-competitive effects 116 . Commission merger practice indicates that in some licensing markets, market shares have remained consistently high over several years, raising competition concerns 117 . Such high market shares amplify, for instance, both the ability of firms to engage in restrictive practices, and the likely share of the market affected, thereby significantly raising the risk of harm to competition 118 . This is broadly consistent with the Commission’s report “Protecting Competition in a Changing World”, which highlights that concentration levels and market shares in several sectors have significantly increased; the intensity of competition and business dynamism has decreased; productivity growth has slowed, and productivity dispersion has increased 119 .  

The increase in the number of data licensing agreements

For data licensing, the main driver of the problem is the increase in the number of data licensing agreements in the market in recent years.

Data licensing has become more common in the market since the TTBER and Guidelines entered into force in 2014, due to changes in the available technologies and in the economy itself 120 . Data licensing agreements now occur in a variety of contexts, including for example: (i) data licensed together with a main technology right, for example where such data takes the form of know-how 121 ; (ii) data licensing embedded in broader contracts for the provision of digital or software-based services, for example where data access or usage rights are contractually integrated into broader service agreements; (iii) licensing of device-related data portfolio, and (iv) data licensing for AI products, including for the purpose of training AI models 122 .

The available data indicate a substantial increase in the licensing of data in recent years, a trend which is expected to continue:

I.The analysis of a sample of licensing agreements performed in the Evaluation Support Study found that there has been a large increase in the use of data-related clauses (for example, mentions of safety data in licensing agreements increased from 15% in the period 2012-2014 to 32% in the period post-2018) 123 .

II.The number of datasets available in public repositories that are subject to open data policies has increased significantly. For example, the current number of datasets available on data.europa.eu is around 1,750,000 with significant growth in the last 5 years:

Screenshot from the website of data.europa.eu showing the evolution

of the number of available datasets (taken on 01/03/2026)

III.The EU data monetisation market (i.e. the revenue that data suppliers earn from selling data) is expected to grow from around EUR 29 billion in 2024 to around EUR 46 billion in 2030. Moreover, data supplier companies operating in the Union are expected to grow from 266,173 in 2024 to around 330,000 by 2030 124 .

IV.Public data on the AI sector shows that the relevance of data licensing in that sector is expected to grow significantly. For example, a study by Grand View Research estimates that the global market for AI datasets & licensing for academic research and publishing was worth USD 381.8 million in 2024 and projects it to reach USD 1.59 billion by 2030 125 .

While not all the data licensing agreements covered by the above statistics will be bilateral agreements relating to the production of goods or services (as is the case for the licensing agreements covered by the TTBER), those statistics indicate that data licensing agreements are more and more common.

The increased importance of technology standards and the licensing of standard-essential technology via pools and platforms 

For LNGs, the drivers of the problem are the market developments that have prompted technology implementers to consider setting up LNGs 126 .

First, the digitalisation of the economy has increased the importance of technology standards, which enable product inter-operability 127 . A notable example is the standards for mobile telecommunications 128 . Whereas these standards were originally developed to enable inter-operability for mobile telephones and networks, the development of the internet of things 129 means that these standards are now implemented by manufacturers and service providers in a variety of sectors 130 , including automotive, consumer electronics 131 and industrial equipment. As a result, the number and diversity of implementers that require access to technology rights (generally patents) that are essential to implement a standard has increased 132 .

Second, technology standards are often supported by technology pools and licensing platforms, which assemble a package of technology rights (generally patents) that are essential to implement a standard, and license them out using a single agreement. Manufacturers wishing to obtain a licence from such pools or platforms are often faced with take-it-or-leave it licensing terms 133 . In that context, some implementers wish to be able to join together to negotiate the terms of SEP 134 licences with technology owners, technology pools and licensing platforms.

2.5.How likely is it that the problems will persist?

The obligation for businesses to self-assess the compliance of their agreements with Article 101 TFEU is not expected to change in the future.

In the absence of an intervention to address the problems identified, it can be expected that the TTBER and Guidelines will continue to not fully deliver on their objectives, and the above-mentioned problems will either persist or become more pronounced.

First, the complexity associated with applying the TTBER’s market share thresholds for technology markets is likely to remain. Businesses are very likely to continue engaging in technology licensing 135 , including at early stages of technology uptake.  Accordingly, it can be expected that businesses will continue to find it difficult to determine whether their agreements fall within the TTBER’s market share thresholds.

Second, the number of data licensing agreements is expected to grow substantially in the coming years, especially in view of the expected increase in products that rely heavily on data for their creation or functioning, including AI-related products 136 .

Third, in view of the continuing digitalisation of the economy, there is no indication that the importance of technology standards, the associated technology pools and licensing platforms will diminish in the foreseeable future. It is therefore likely that implementers that use these standards will continue to wish to join together in LNGs to negotiate licensing terms.

3.Why should the EU act?

3.1.Legal basis

Under the Enabling Regulation, the Commission is empowered to adopt block exemption regulations for categories of technology transfer agreements that can be assumed to fulfil the conditions of Article 101(3) TFEU.

3.2.Subsidiarity: added value of EU action

Competition law is an area of policy in which the EU has exclusive competence, as set out in Article 3 TFEU. Furthermore, the Enabling Regulation grants only the Commission, and not the Member States, the power to adopt block exemption regulations for technology transfer agreements. Accordingly, the subsidiarity principle does not apply.

In any event, there is an added value to EU action in this area. The TTBER also binds NCAs and national courts. Together with the Guidelines 137 , it promotes a harmonised approach to the assessment of technology transfer agreements across the Union, reducing the scope for diverging interpretations by NCAs and national courts, and thus reducing compliance costs for businesses that operate in more than one Member State 138 . Moreover, these instruments provide greater legal certainty for businesses that wish to enter into technology transfer agreements than the Commission’s general guidelines and notices on the application of Article 101 TFEU.

4.Objectives: What is to be achieved?

4.1.General objectives

The initiative consists of a revised TTBER and revised Guidelines. The general objective of the TTBER and the Guidelines is to ensure the effective protection of competition, in particular by exempting only those technology transfer agreements that can be assumed to meet the conditions of Article 101(3) TFEU, and by giving guidance on the competition law assessment of technology transfer and other technology-related agreements, to provide legal certainty for businesses.

In this context, ensuring the effective protection of competition means ensuring that technology transfer agreements do not distort competition in technology licensing markets and in the downstream markets where products incorporating those technologies are sold. While these agreements are often pro-competitive, in certain cases undertakings may use them to pursue anti-competitive objectives that ultimately harm consumers.

Restrictive technology transfer agreements may reduce inter-technology competition, for example where reciprocal obligations prevent either competitor from gaining a technological lead over the other, or where agreements increase transparency in the market in a way that facilitates coordination between competitors. They may also foreclose competitors, for example where licensors impose non-compete obligations on licensees to such an extent that it becomes difficult for competing licensors to enter or expand, or where agreements restrict access to inputs, thereby creating and/or increasing barriers to entry or expansion. Certain restrictions may also reduce intra-technology competition, for example from the imposition on licensees of resale price maintenance or territorial or customer sales restrictions. This can weaken price competition, segment markets and limit choice and innovation for businesses and consumers.

4.2.Specific objectives

The specific objectives of the initiative reflect the problems described above and are as follows. The first specific objective is to reduce the complexity for businesses of applying the TTBER’s market share thresholds for technology markets. The second specific objective is to facilitate the assessment of data licensing agreements by businesses under Article 101 TFEU, and the third specific objective is to facilitate the assessment of LNGs by businesses under Article 101 TFEU.

The following table illustrates the relationship between the problem drivers, the problems and the objectives: 

5.What are the available policy options?

5.1.What is the baseline from which options are assessed?

The framework for assessing technology transfer agreements under EU competition law is the TTBER and Guidelines that were adopted in 2014. For the reasons set out below, these rules are the relevant baseline for assessing the policy options identified to address the three problem areas identified above.

First, the evaluation and the impact assessment have shown that, overall, the TTBER and the Guidelines remain useful instruments, as they facilitate the assessment of technology transfer agreements and increase legal certainty as compared to a situation without them (see Section 2.3). Coverage of an agreement by the TTBER and Guidelines reduces businesses’ compliance costs significantly – by an average of 33% – compared with a situation in which the assessment has to be performed solely on the basis of Article 101 TFEU and the case law.

Second, the current version of the TTBER and Guidelines constitute the relevant baseline, rather than any earlier version of those instruments, because the changes made in 2014 (which consisted mainly in adding a soft safe harbour for technology pools in the Guidelines and amending the list of excluded restrictions in the TTBER) are still relevant, according to the results of the evaluation 139 .

As explained in more detail in Section 2.5 above, under the baseline scenario (maintenance of the current rules) the identified problems are likely to persist. These problems result, on the one hand, from the complexity of applying the TTBER’s market share thresholds in the context of early licensing and, on the other hand, from the emergence of new market practices, namely data licensing and LNGs, for which there are currently no specific competition law rules or guidance. Since early licensing and these new market practices are likely to continue in the future, under the baseline scenario the current rules would continue not to meet their objectives.

5.2.Description of the policy options

As explained in Section 2.1 above, the impact assessment has focused on one area of the existing rules that is complex to apply in certain contexts, namely the TTBER’s market share thresholds for technology markets, and the current lack of guidance on two developing market practices, namely data licensing and licensing negotiation groups. The policy options presented in the call for evidence have been further refined on the basis of the evidence gathered in the impact assessment. The final options take into account the general objective of ensuring the effective protection of competition, as well as the limits imposed by the Enabling Regulation 140 .

5.2.1.Policy options for the TTBER’s market share thresholds for technology markets

Under the baseline scenario for this area, the application of the block exemption would continue to be conditional upon the parties’ satisfying the TTBER’s market share thresholds for technology markets. Under this scenario, the rules would continue to provide insufficient clarity on how market shares should be calculated for new technologies that have not yet generated product sales. Two policy options have been identified for this area 141 .

Under Option 1, the block exemption would, as a general rule, continue to be conditional upon the calculation of market shares in the technology market. However, the application of the thresholds would be clarified and simplified for technologies at an early stage of commercialisation. As explained in more detail in Section 2.1, the evaluation identified complexities in applying the market share thresholds in such cases. More specifically, Option 1 would introduce the following incremental changes:

-the TTBER would specify that technologies that have not yet generated product sales are considered to hold a zero market share. Although this rule is already mentioned in a passage of the Guidelines, several stakeholder comments received during the evaluation and impact assessment revealed a lack of awareness and understanding 142 . Incorporating this rule in the TTBER and further elaborating on it in the Guidelines would increase legal certainty and raise awareness that agreements for the licensing of such technologies will benefit from the block exemption for at least the duration of the grace period 143 ; 

-the grace period provided in Article 8(e) of the TTBER 144  would be extended by one year (from two to three years). This would extend the application of the block exemption for an additional calendar year in cases where the parties’ market shares rise above the thresholds during the agreement. The evaluation showed that the grace period provides businesses with a degree of comfort when applying the market share thresholds, for example, in situations involving fluctuating market shares 145 . As stakeholders noted during the impact assessment, extending the grace period by one year increases legal certainty for companies introducing new technologies or operating in markets with volatile shares 146 . Extending it further would, however, conflict with empirical findings on the speed of technology adoption 147 .   

The practical effect of Option 1 is that parties licensing technologies that have not yet generated sales (“early licensing”) could benefit from the block exemption for at least four years from the date of signing 148 , without the need for them to calculate their market shares. 

Option 2 would introduce a 3+ test in the TTBER, as an alternative condition to the current market share thresholds for technology markets. The baseline scenario already includes the 4+ test as a soft safe harbour: the Guidelines already explain that Article 101 is unlikely to be infringed where there are four or more independently controlled technologies in addition to those controlled by the parties. Stakeholders are already familiar with this soft safe harbour and rely on it to assess their compliance with competition law. Under Option 2, an agreement could still benefit from the block exemption provided that there were fewer than four, namely three, alternative technologies on the market. The main practical consequence of this Option would therefore be to simplify the application of the market share thresholds for technology transfer agreements in markets with fewer than four – namely, three – alternative competing technologies. In such cases, parties would no longer need to calculate market shares, although they would still need to identify substitutable technologies.

Options 1 and 2 are not mutually exclusive and could therefore be introduced together.

5.2.2.Policy options for data licensing

The baseline scenario for this area consists of not providing guidance on data licensing agreements in the revised TTBER and Guidelines, which would therefore continue to remain silent on the issue. Therefore, under this baseline scenario, businesses would continue to assess the compliance of their data licensing agreements using only Article 101 TFEU and the case law and decisional practice (which is currently rather scarce).

Two policy options have been identified for this area, both of which aim to provide guidance on the competition law assessment of data licensing agreements 149 . While both options would increase legal certainty, the two options are incremental: Option 1 focuses only on clarifying which types of data licensing agreements are covered by the block exemption provided by the TTBER. Option 2 – in addition to the clarification to be provided under Option 1 – foresees the inclusion in the rules of additional guidance on certain data licensing agreements that fall outside the scope of the TTBER 150 . In more detail:

Option 1 would update the current rules to clarify under which circumstances data licensing agreements can benefit from the block exemption provided by the TTBER. The updated guidance would not expand the scope of the TTBER to include new rights in data, but would clarify that data licensing can benefit from the block exemption where:

I.the licensed data qualifies as one of the technology rights (including know-how) 151 covered by the TTBER, for example patents or software copyright, as defined in Article 1 of the TTBER; or

II.the data licensing satisfies the conditions of Article 2(3) of the TTBER, namely (a) it takes place within a technology transfer agreement that itself fulfils the conditions of the TTBER; (b) it is directly related to the production or sale of the contract products, and (c) it qualifies as the licensing or assignment of intellectual property rights or know-how to the licensee.

Under this option, the guidance to be provided would concern only those data licensing agreements that meet the conditions of the TTBER, while no guidance would be provided for the competition law assessment of data licensing agreements that do not meet such conditions.

Option 2 is to provide the guidance described under Option 1 and, in addition, to provide guidance on data licensing agreements that fall outside the TTBER.

As regards its scope, this new guidance would focus on the licensing of those types of data that are most similar to the technology rights already covered by the TTBER, including in terms of competitive effects, i.e. databases protected by copyright or by the sui generis right defined in Article 7 of the Database Directive (the ‘database sui generis right’) 152 . The assessment of agreements for the licensing of such databases gives rise to similar considerations as the licensing of technology rights covered by the TTBER. In particular, the creation of databases protected by copyright or by the database sui generis right may entail significant investments and the licensing of such databases is, in general, pro-competitive. It promotes innovation, by allowing database creators to earn a return on their R&D costs. It also leads to the dissemination of data protected by intellectual property rights, which may increase downstream innovation and create value, by reducing the production costs of licensees or by enabling them to produce new or improved products.

As regards the content of this new guidance, the guidance would explain that the Commission will generally apply the principles of the TTBER and the Guidelines when assessing licensing of databases protected by copyright or the database sui generis right. This would provide companies with a clear indication of the rules that the Commission will apply when assessing those types of data licensing agreements under Article 101 TFEU 153 . The new guidance would also include explanations on the applicable rules concerning the exchange of commercially sensitive information through data licensing agreements and a clarification on how the Commission will assess under Article 101 the data-sharing agreements mandated by Chapter II of the Data Act 154 .  

5.2.3.Policy options for licensing negotiation groups

The baseline scenario for this area is the continued absence of guidance for this type of agreement. Businesses wishing to set up LNGs would therefore continue to face a high level of legal uncertainty and high compliance assessment costs. Two policy options have been identified for this area.

Option 1 is to provide new guidance for the assessment of LNGs under Article 101 TFEU. The guidance would provide a framework for assessing whether an LNG restricts competition within the meaning of Article 101(1) TFEU and, if so, whether it meets the conditions of the exception provided by Article 101(3) TFEU. As LNGs typically involve an agreement between competitors, the guidance would explain the distinction between a genuine LNG and a buyer cartel, and set out factors for assessing whether an LNG is likely to restrict competition ‘by object’ or ‘by effect’ 155 . Regarding restrictive effects, the guidance would emphasise the need to consider whether the members of the LNG hold market power, whether they seek to coerce technology owners into negotiating with the LNG and whether the joint negotiation of licences through the LNG is likely to lead to a high degree of commonality of costs between the LNG members, such as to be capable of facilitating downstream collusion. The guidance would cover the competitive effects of LNGs in upstream technology licensing markets and in downstream product markets 156 . Lastly, the guidance would recall that agreements which produce restrictive effects may nonetheless be compatible with Article 101 where they generate efficiencies that outweigh the negative effects and meet the conditions of Article 101(3). 

Option 2 is to provide the new guidance outlined under Option 1, together with a soft safe harbour. This would state that LNGs that meet a series of conditions regarding their establishment and operation are generally unlikely to infringe Article 101 TFEU, i.e. these LNGs would benefit from a soft law presumption of compliance 157 .

5.3.Options discarded at an early stage

Letting the TTBER expire

Allowing the TTBER to expire was an option discarded at an early stage as this would conflict with the Union’s objectives of promoting innovation, growth and competitiveness. Technology licensing is an important means of disseminating innovation, and a block exemption framework facilitates such dissemination by enabling businesses to conclude licences with greater legal certainty. Letting the TTBER expire would potentially discourage technology licensing, because it would make it harder for businesses to assess the compliance of their agreements with Article 101 TFEU. This approach is also consistent with the clear finding of the Evaluation that the TTBER and Guidelines remain relevant, as they facilitate the competition law assessment of technology transfer agreements by businesses 158 .

The TTBER’s market share thresholds for technology markets

The call for evidence of the impact assessment phase set out two policy options - the second including two sub-policy options - to address the practical difficulties reported by stakeholders in applying the TTBER’s market share thresholds for technology markets. One of these options was discarded at an early stage, i.e. removing the market share thresholds for technology markets altogether, leaving only the thresholds for relevant product markets.

This policy option was discarded because it would not take into account the possibility that the parties may hold market power in relevant technology licensing markets. As explained in Section 2.1 above, competitive conditions may differ between the relevant technology market and the relevant product market. For instance, under this option, a technology owner that has market power in technology licensing but is not active in the product market would be able to enter into restrictive licensing agreements (with competitors or non-competitors) within the block exemption provided that each licensee held a market share below 20% or 30% in the relevant product market 159 . Several stakeholders highlighted this risk in their contributions to the impact assessment public consultation 160 .

Data licensing agreements

The call for evidence of the impact assessment phase also presented as an alternative option the possibility of expanding the definition of “technology rights” included in the TTBER to bring within the scope of the block exemption the licensing of data protected by intellectual property rights that do not fall within the current definition of “technology rights” (for example, database sui generis rights). This would go further than Option 2, because it would use the TTBER, rather than the Guidelines to provide rules for assessing agreements for the licensing of data that does not fall within the current definition of technology rights included in the TTBER.

This policy option was discarded because of the lack of experience in the enforcement of antitrust rules in this sector and because it is not certain that the Enabling Regulation empowers the Commission to extend the scope of the TTBER to this type of licensing. In particular, the Enabling Regulation empowers the Commission to block-exempt agreements for the licensing of industrial property rights and production know-how (see Section 1.3 above). Consequently, by extending the scope of the TTBER in this way, the Commission might exceed its powers, thereby rendering the revised TTBER invalid.

The Commission also discarded at an early stage the option to present to the Council a proposal to modify the Enabling Regulation to allow the inclusion of this type of licensing in the TTBER. Through enabling regulations, the Council allows the Commission to adopt block exemption regulations to exempt certain agreements from Article 101 TFEU where the experience allows the Commission to conclude, with sufficient certainty, that the conditions set in Article 101(3) would be fulfilled. This generally occurs in sectors or for agreements where the competitive effects of certain practices are clear and where enforcement experience of the Commission has been sufficiently developed, to ensure that the exemption is not granted to agreements that are anti-competitive. Given the novelty of data licensing, and the scarcity of antitrust enforcement in that sector, it would have been premature to present to the Council a proposal to modify the Enabling Regulation in this regard.

6.What are the impacts of the policy options?

This section presents the main impacts of the policy options described in Section 5.2 compared to the baseline scenario. These policy options would primarily affect businesses that use the TTBER and Guidelines to assess the compliance of their technology transfer agreements with EU competition law 161 . Indirectly, the policy options would also affect consumers. By facilitating compliance assessments for businesses, the policy options should encourage the conclusion of a greater number of technology-related agreements. This would, in turn, increase the diffusion of technology, which can be expected to benefit consumers in the form of more innovative products, greater quality and variety, and lower prices. 

The following sub-sections assess the impacts of the options on: (i) competition in the market; (ii) businesses (including SMEs), and (iii) innovation and competitiveness. The direct impacts (on competition and businesses) are assessed in more depth than the indirect impacts (on innovation and competitiveness). The evidence gathered during the impact assessment, notably the feedback from stakeholders and NCAs, shows that the policy options would have limited or no impact on social issues, environmental issues 162  or fundamental rights. These areas are therefore not further assessed.

The assessment of the impacts of the policy options is subject to limitations similar to those faced during the evaluation of the current rules 163 . Stakeholders provided qualitative, albeit limited, feedback on the costs and benefits of the policy options 164 . However, it proved difficult to obtain quantitative evidence.    

The assessment of impacts therefore relies heavily on qualitative evidence. Where available, quantitative evidence was generated by extrapolating from the data in Section 2.3. The qualitative evidence included: the feedback from stakeholders, the enforcement experience of the Commission, the Evaluation Support Study and the Expert Report on Data Licensing. The feedback of stakeholders is of particular importance, since businesses that use the rules to assess the compliance of their technology transfer agreements with Article 101 TFEU are the primary users of the TTBER and Guidelines. They therefore have practical experience of the impacts of the rules.

In the assessment of the stakeholder feedback, due account was given to the fact that the feedback was not necessarily representative 165 . For certain areas (for example, LNGs), the report takes account of the fact that technology owners and technology implementers have opposing interests and therefore their views may differ. Overall, but especially where there were diverging opinions, the assessment gave particular weight to the arguments raised. As explained in Annex 4, for each area of the rules, the assessment applied a triangulation approach, giving particular weight to stakeholder views that were consistent with other sources of evidence (for example, the findings of the evaluation, the Commission’s enforcement practice and the Expert Report on Data Licensing).

6.1.The TTBER’s market share thresholds for technology markets

6.1.1.Impact on competition in the market

Option 1 (clarifying that “early licensing” is deemed to have a zero market share in the technology market and extending the TTBER’s grace period by one year) would, on balance, have a positive impact on competition. As noted above, a key consequence of this option would be that early licensing could benefit from the block exemption for a period of at least 4 years from the date of the licensing agreement. Although the pace of technological uptake varies considerably between technologies, the economic literature shows that adoption can often take years 166 and that technology markets are often competitive in the early stages of a technology’s life cycle 167 . During this period, the parties are less likely to hold market power in the technology market. Furthermore, by encouraging early licensing, this option would promote the dissemination of new technologies, thereby enhancing competition. Even though it cannot be excluded that, in specific scenarios, a technology that is subject to early licensing may hold market power, in such scenarios the block exemption would only apply for the duration of the grace period 168 . 

Option 2 (introducing an alternative test based on the presence on the market of at least three other substitutable technologies, i.e. the 3+ test) would, on balance, have a negative impact on competition. Under this option, technology transfer agreements could benefit from the block exemption if at least three other independently controlled substitutable technologies were present on the market, irrespective of whether the technology licensed under the agreement generated sales of products. Experience shows that technology markets can sustain several technologies even though market power is held by only one or a few firms. In such cases, where competitors operate only at the margins, technology transfer agreements involving firms with market power may produce appreciable anti-competitive effects. Enforcement experience demonstrates that even where three other substitutable technologies exist in addition to those controlled by the parties, the agreement may still result in significant competitive harm contrary to Article 101(1) TFEU 169 . This option would therefore create the risk of block-exempting agreements for which it cannot be assumed that their efficiencies outweigh their anti-competitive effects.

6.1.2.Impact on businesses (including SMEs)

Option 1 would have a positive impact on businesses, as it would increase legal certainty for businesses wishing to enter into technology transfer agreements and reduce their compliance costs, thereby encouraging them to conclude such agreements. This is also confirmed by the views of stakeholders collected during the consultation on the proposed revised texts 170 .

In the case of early licensing, businesses could refrain from engaging in market definition and calculation of market shares for at least 4 years from the date of licensing as a consequence of Option 1. In particular, this delay would benefit businesses that are less experienced with the definition of downstream markets 171 and calculating market shares, as it would give them time to better understand technological uptake and possible substitutes. 

To give an indication of the potential cost savings, this report attempts to provide a rough estimate of the potential reduction in compliance assessment costs per licensing agreement, based on indicative figures suggesting that assessing whether an agreement falls within the scope of the TTBER requires, on average, EUR 3,750 per agreement, and that the cost of applying the market share thresholds is approximately EUR 787.5 per licensing agreement (see Section 2.3). Costs for verifying compliance with the market share thresholds consist of: one-off costs, generally incurred before signing (initial market definition and market share estimation), and periodic costs, incurred after signature to verify that the agreement continues to respect the thresholds. For the purposes of the present analysis, an annual frequency is assumed (with assessments at the end of year 1 and each subsequent year of the licensing agreement) 172 . Under Option 1, firms could generally postpone one-off costs until the end of year 4 and could avoid several periodic assessments during the term of the agreement, conducting the first periodic assessment only at the end of year 5. Based on a number of assumptions, Option 1 is estimated to reduce compliance assessment costs for applying the market share thresholds by approximately 19-39 % on average per licensing agreement, corresponding to savings of around EUR 150-300 per agreement 173 . While modest in absolute terms, these cost reductions can be material, particularly for smaller firms, universities or licensing agreements with uncertain or limited expected returns. Based on our extrapolation of the number of agreements likely to be affected by the problem (see Section 2.3), aggregate annual savings in compliance assessment costs are estimated to amount to between EUR 223,000 and EUR 1,836,000.

More generally, Option 1 would reduce the risk that businesses need to carry out an individual assessment of their agreements under Article 101 TFEU. As an indirect effect, Option 1 could also encourage firms to conclude a greater number of technology transfer agreements, particularly at an early stage of technological uptake. This would be especially relevant for SMEs 174 and for agreements with modest value, for which even a modest reduction in compliance assessment costs could enhance firms’ capacity and likelihood to enter into technology transfer agreements. Early licensing could in turn increase licensors’ revenues, as well as improve licensees’ productivity and R&D capabilities 175 . By reducing the time and resources that businesses devote to compliance assessments, this option could also lower opportunity costs, allowing firms to focus on more productive activities.

Option 2 would, overall, have a positive or neutral effect on businesses. Any reduction in compliance costs is likely to be limited 176 . For agreements where three independently controlled substitutable technologies are present on the market, Option 2 would allow them to benefit from the block exemption without the need to calculate market shares. Businesses would, however, still need to identify substitutable technologies, which can be more complex than calculating market shares. This is corroborated by the results of the impact assessment public consultation questionnaire: several stakeholders considered that a test based on the number of substitutable technologies would not increase legal certainty 177 .  

Option 2 may also have a (likely limited) indirect effect by encouraging firms to conclude a greater number of technology transfer agreements. Similarly to Option 1, this could generate positive effects for licensors and licensees (for example, increased productivity and lower opportunity costs) 178 . However, it could also produce negative indirect effects if agreements concluded by firms with market power contained anti-competitive restrictions, which could, for example, hinder licensees from efficiently commercialising the licensed technology and/or prevent licensors from licensing their technologies efficiently.

Options 1 and 2 would have impacts on SMEs consistent with those outlined above for each option 179 . 

6.1.3.Impact on European innovation and competitiveness

Option 1 would have a positive (indirect) impact on innovation and competitiveness by making it easier for businesses to assess whether their agreements meet the conditions of the TTBER, thus facilitating the conclusion of pro-competitive technology transfer agreements.

These positive effects will primarily benefit EU businesses, as EU competition law applies to agreements that have effects on the EU market 180 and therefore often involve at least one EU-based licensor or licensee. Thus, even though the TTBER and the Guidelines are neutral regarding the nationality of the parties, the businesses most likely to rely on the TTBER and the Guidelines to assess their technology transfer agreements are EU-based 181 . 

Regarding innovation: by making it easier for businesses to conclude pro-competitive technology transfer agreements – especially in early licensing scenarios – this option could enhance licensors’ ability to recoup their R&D investments. This should in turn incentivise further R&D, fostering additional innovation. At the same time, licensees may improve or adapt the licensed technology (follow-on innovation) 182 . Together, these effects strengthen the capacity of businesses to innovate, and can be expected to contribute to overall technological progress 183 . Since innovation is a key driver of productivity, higher levels of innovation can also indirectly support competitiveness, for example through improvements in businesses’ efficiency and cost structures.

Regarding other dimensions of competitiveness: licensing can reduce licensees’ production costs 184 and, more broadly, increase industry-wide productive efficiency, especially when technology transfer allows production and sales to be undertaken by the firm with the lowest cost and/or greatest production expertise 185 . This enhances cost competitiveness and, depending on various factors, may also improve price competitiveness. Additionally, an increase in technology transfer agreements could facilitate market entry and intensify competition in product markets. By enabling a licensee to use a technology that it was incapable of developing internally, a technology transfer agreement may allow it to enter a market that it would not otherwise been able to access 186 .

Option 2 would, on balance, have a neutral or potentially negative effect on innovation and competitiveness. As noted above, it is likely to have a limited impact on businesses’ ability to assess whether their technology transfer agreements fall within the block exemption and therefore is likely to generate only limited positive effects compared to Option 1. At the same time, Option 2 could have (albeit likely limited) negative effects by block-exempting agreements whose restrictive effects are not counterbalanced by efficiencies. For instance, a technology transfer agreement between competitors with market power may allow them to prevent each other from gaining a technological lead. While this may increase their short-term profits, it could also reduce their incentives to innovate, by reducing competitive pressure 187 .

The impacts of both options on the competitiveness of SMEs would be consistent with the general impacts outlined above 188 .

6.2.Data licensing 

6.2.1.Impact on competition in the market

The Expert Report on Data Licensing confirmed the pro-competitive potential of data licensing. According to the report, data licensing frequently amounts to a collaborative business strategy which combines the parties’ resources. It can generate products which would not reach the market in its absence, for example because the licensor does not have the resources necessary for commercialisation 189 . Data licensing also incentivises licensors, by providing monetary returns for their out-licensing, and helps to disperse exclusive data control, so that additional players can realise the potential of the data 190 . 

This was confirmed by the large majority of stakeholders responding to the impact assessment questionnaire. Around 60% of stakeholders indicated that data licensing generally creates more pro-competitive than anti-competitive effects 191 , while 30% of them answered that data licensing generates only pro-competitive effects 192 . The pro-competitive effects identified by stakeholders include the creation of products of higher quality by the licensee thanks to the licensed data, but also lower costs and faster market entry 193 .

While data licensing agreements can be considered overall pro-competitive, the use of restrictions within such agreements can produce anti-competitive effects. For example, data licensing can be used by competitors to exchange commercially sensitive information and thereby collude in the market where they compete. Moreover, exclusive or selective licensing may foreclose firms that do not have access to the data, preventing them from competing effectively on the market 194 .

The effects on competition described above are valid for data licensing in all sectors of the economy. Pro-competitive effects are more prominent where the in-licensing of data relates to technologies in less advanced stages, where access to external data is more likely to have a bigger impact 195 (see also Section 6.2.3 below).

Option 1 (updating the current framework to clarify when a data licensing agreement can benefit from the block exemption provided by the TTBER) would have a limited positive impact on competition. Option 1 would make clear to businesses that the licensing of some types of data can benefit from block exemption, provided that the conditions of the TTBER (market share thresholds and absence of hardcore restrictions) are respected.

This additional legal certainty would make it more attractive to license these types of data. The additional licensing can produce the pro-competitive effects described above. That said, the positive impact on competition of Option 1 would be limited in scope, as it would only cover those licensing agreements under which the licensed data falls within the definition of one of the technology rights already covered by the TTBER 196 .

Option 2 would also have a positive impact on competition by providing legal certainty, not only for the types of data licensing covered by Option 1, but also for the licensing of certain types of data that are not covered by the TTBER (see Section 5.2.2 for more details on the content of Option 2).

This legal certainty can be expected to lead to an increase in the licensing of this type of data, which would have an overall positive impact on competition in the market (see above).

On the other hand, it cannot be excluded that certain restrictions in agreements for the licensing of data not covered by the TTBER (i.e. those data covered by Option 2 but not by Option 1) may have different or more significant negative impacts on competition than the restrictions commonly found in agreements covered by the TTBER. That said, any risk of a negative impact on competition from Option 2 seems limited. First, the additional guidance that would be provided under Option 2 would focus on databases protected by copyright or by the database sui generis right (i.e. protected by IP rights). According to the Expert Report on Data Licensing, the licensing of data protected by an IP right tends to be particularly pro-competitive because it overcomes the strong usage restriction created by the IP right 197 . Second, the vast majority of respondents to the relevant question in the impact assessment public consultation confirmed that providing guidance on data licensing would have a positive impact on competition in the market 198 .

Moreover, it can be expected that the positive impact of Option 2 would be more significant than the impact of Option 1. This is because the additional guidance that would be provided under Option 2 would inevitably cover the licensing of more types of data and, therefore, a higher number of data licensing agreements 199 .

6.2.2. Impact on businesses (including SMEs)

Option 1 would reduce the compliance assessment costs of businesses that enter into agreements for the licensing of data that qualifies as a technology right (including know-how) as defined in the TTBER. For those agreements, it would become clear that assessing compliance with Article 101 can be based on the (simplified framework of the) TTBER and the Guidelines.

As mentioned above, the ability to use the TTBER and the Guidelines to assess the compliance of an agreement with Article 101 TFEU reduces those compliance assessment costs by an average of 33%, compared with a situation in which the assessment has to be performed solely on the basis of Article 101 TFEU and the case law (see Section 2.3 above). On this basis, it is estimated that Option 1 would, on average, reduce the costs for assessing compliance with competition law by approximately EUR 1,848 per agreement 200 . However, this reduction of compliance costs would apply only to the data licensing agreements that concern data that qualifies as know-how or another technology right covered by the TTBER. There is no reliable data on how many of these data licensing agreements exist on the market. Based on an estimation that these agreements represent around 20% of the total population of relevant data licensing agreements (namely, bilateral data licensing agreements for production purposes), the aggregate annual savings in compliance assessment costs would amount to between EUR 369,600 and EUR 3,696,000 201 .

Under Option 2, the reduction of compliance costs would remain the same for the agreements covered by the guidance under Option 1. However, the additional guidance provided under Option 2 for licensing agreements concerning databases protected by copyright or the database sui generis right would reduce the compliance costs also for this type of agreements. As for the agreements covered under Option 1, no available data exist on their population. Estimating that these agreements account for an additional 20% of the total population of relevant data licensing agreements (namely, bilateral data licensing agreements for production purposes), in addition to the agreements covered by Option 1, the aggregate annual savings in compliance assessment costs under Option 2 are estimated to range between EUR 739,200 and EUR 7,392,000 202 . 

Both options may also incentivise businesses to enter into additional data licensing agreements, thereby increasing their revenue as licensors or gaining access to valuable data as licensees.

The above-mentioned reduction in compliance costs would apply also to SMEs, which are subject to the same obligation to assess the compliance of their agreements with competition law. The estimated cost savings would have a proportionately greater impact on SMEs than on larger businesses, as SMEs typically have less resources to devote to compliance assessments 203 .

6.2.3.Impact on European innovation and competitiveness

Both Option 1 and Option 2 would have a positive (indirect) impact on innovation and competitiveness, by making it easier for business to enter into pro-competitive data licensing agreements. Overall, Option 2 would have a stronger positive impact on innovation and competitiveness, given that it would provide guidance in relation to more types of data licensing agreements.

As explained in Section 1.1 above, data is an essential resource for innovation. An increase in the number of data licensing agreements would enable licensees to produce better, more innovative products, especially in frontier and technology-intensive sectors, such as AI 204 . Moreover, if the data is licensed to a licensee that will use the data for creating a new value chain, it can spark disruptive innovation 205 . Also, an increase in remuneration for data holders from their licensing activities would in turn raise the incentives to gather and/or license additional data, thereby creating positive feedback loops.

As regards other dimensions of competitiveness, improved products would help European business to be more competitive on the global stage and improve their international competitiveness. Regarding artificial intelligence in particular, the availability of data is crucial to allow the development of competitive AI products. Additional data licensing would therefore strengthen the competitiveness of businesses in vital sectors of the EU economy.

The impact on SME competitiveness will be in line with the impact on competitiveness of larger businesses.

6.3.Licensing negotiation groups

6.3.1.Impact on competition in the market

Option 1 (providing guidance on the competition law assessment of LNGs) would have a neutral or positive impact on competition 206 .

First, by identifying the competition concerns that LNGs can raise, the guidance would serve as a warning to businesses not to engage in anti-competitive LNGs. Compared to the baseline, this option should therefore reduce the risk that LNGs will be set up and operated in a manner which infringes Article 101 TFEU. The stakeholder feedback to the impact assessment public consultation and the public consultation on the draft revised texts identified several such competition concerns, in particular collusion between competing implementers in downstream product markets and the exercise of excessive buyer power (including through coordinated hold-outs 207 ), resulting in sub-competitive royalty rates and reduced incentives for technology owners to invest in R&D 208 . Concretely, collusion between implementers on downstream product markets can be expected to have a negative impact on the quality, variety and price of the products offered to consumers. Likewise, reductions in investment in R&D can be expected to diminish the intensity of competition in innovation, which ultimately also has a negative impact on the quality and variety of products offered to consumers, as well as on the efficiency and cost of manufacturing processes.

Second, by increasing legal certainty regarding the application of Article 101 TFEU to LNGs, this option should lead to the establishment of a greater number of neutral or pro-competitive LNGs than would be the case under the baseline. The consultation activities identified several possible pro-competitive effects of LNGs 209 . First, LNGs can reduce licensing transaction costs, by reducing the number of bilateral licence negotiations. Second, they can promote more informed and balanced negotiations, through the pooling of implementer expertise, in particular regarding the validity and essentiality of the rights being licensed 210 . According to technology implementers, more balanced negotiations are likely to lead to fairer licensing terms. Both of these effects can help technology owners and technology implementers to compete more strongly on their respective markets. For example, lower transaction costs enable both owners and implementers to divert resources to more productive activities, and fairer licence terms can lead to increased uptake of technology licences, thereby increasing the royalty revenues of technology owners.

Under this option, the guidance would not contain a soft safe harbour (i.e. a presumption of compliance with Article 101 TFEU). The Commission’s ability to intervene against anti-competitive LNGs would therefore be preserved. This consideration is particularly relevant in view of the novelty of LNGs and the lack of enforcement experience.

Option 2 (providing guidance on LNGs, including a soft safe harbour) would have a neutral impact on competition. The soft safe harbour would increase legal certainty for businesses and make their compliance assessments easier: to ensure compliance they could choose to simply design their LNG in accordance with the soft safe harbour’s conditions. Option 2 can therefore be expected to lead to the establishment of more LNGs than would be the case under Option 1. Provided the guidance and the soft safe harbour are formulated appropriately, this option therefore increases the likelihood that LNGs will be set up which generate the pro-competitive effects described under Option 1 211 .

On the other hand, a soft safe harbour creates an expectation that the Commission will not intervene against businesses that comply with the safe harbour’s conditions. This option would therefore limit the Commission’s ability to intervene against LNGs that harm competition despite falling within the soft safe harbour. Although the conditions of the soft safe harbour would be formulated cautiously, given the novelty of LNGs and the lack of enforcement experience, it cannot be excluded that they may fail to address certain competition concerns 212 . By limiting the Commission’s ability to take enforcement action, this option could have a negative impact on competition.

Option 2 could lead to a second type of negative impact for competition. Due to the lack of enforcement experience in relation to LNGs, there is a risk that the conditions of the soft safe harbour may be formulated too strictly or prescriptively, making them ill-adapted to businesses’ needs or unworkable in practice. This would reduce the uptake and effectiveness of LNGs and thus their potential to generate the pro-competitive effects mentioned under Option 1.

6.3.2.Impact on businesses (including SMEs)

Option 1 would reduce the cost for businesses of assessing the compliance of LNGs with Article 101 TFEU. The Evaluation Support Study and the survey conducted at the reality check workshop show that providing specific rules or guidance on technology transfer agreements in the TTBER and Guidelines reduces compliance assessment costs significantly 213 .

In addition to this direct impact on compliance assessment costs, the increased legal certainty resulting from the new guidance on LNGs makes it more likely that businesses will set up LNGs that have competition-neutral or pro-competitive effects. As stated in Section 6.3.1 above, the possible pro-competitive effects of LNGs include reduced licensing transaction costs, for both technology owners and technology implementers.

Option 2 would reduce businesses’ compliance assessment costs to a greater extent than Option 1, as businesses could ensure their compliance with Article 101 TFEU simply by designing their LNGs in accordance with the conditions of the soft safe harbour.

The indirect positive impact on businesses’ licensing transaction costs mentioned under Option 1 can also be expected to apply under this option.

The cost reductions under both options would also apply to SMEs. As set out in Section 2.3 and footnote 108 above, significant numbers of SMEs are either potential implementers of SEPs or actually conclude SEP licences each year. Moreover, in the public consultation on the draft revised rules, both technology owners and implementers stated that LNGs could be particularly useful for SME implementers, as they may not have the resources or expertise to negotiate fair licensing terms for their business 214 .

6.3.3.Impact on European innovation and competitiveness

Option 1 would have a neutral or positive indirect impact on innovation and competitiveness. As stated in Section 6.3.1 above, this option would make it easier for businesses to assess the compliance of LNGs with Article 101 TFEU and can therefore be expected to lead to the formation of more LNGs that are either competition-neutral or pro-competitive than would otherwise be the case. As also explained in Section 6.3.1, where LNGs result in agreed licensing terms, this can create benefits both for technology owners and implementers. Reduced transaction costs enable both sides to divert resources to other business activities, for example further R&D in the case of technology owners and product development in the case of implementers. Increased licence uptake and fairer licensing terms also contribute to the competitiveness of both stakeholder groups.

On the other hand, the novelty of LNGs and the lack of enforcement experience creates a risk that they may produce anti-competitive effects, despite the provision of guidance. In the impact assessment public consultation and the consultation on the draft revised texts, technology owners referred notably to the possibility that LNGs may lead to coordinated hold-outs 215 . In that case, technology owners’ incentives to invest in further innovation could be negatively impacted.

Given that LNGs are a new practice, it is not yet clear whether they will be widely used. The scale of the above impacts on innovation and competitiveness therefore remains uncertain. See Section 2.1 (Problem 3) for an indication of the types of sectors in which technology implementers may wish to form LNGs.

Option 2 would have similar neutral or positive effects on innovation and competitiveness. The inclusion of a soft safe harbour in the guidance can be expected to lead the formation of more LNGs than under Option 1, which in turn increases the potential for the positive impacts on innovation and competitiveness mentioned under that option. On the other hand, this option would limit the Commission’s ability to intervene against LNGs which comply with the conditions of the soft safe harbour but nonetheless lead to anti-competitive effects, including negative impacts on innovation, for example through the exercise of excessive buyer power.

The impacts of both options on the competitiveness of SMEs would be consistent with the general impacts outlined above.

7.How do the options compare and Preferred options

This section compares the policy options between themselves and against the baseline scenario as regards their effectiveness, efficiency and coherence, and concludes on the preferred option for each area of the rules, also taking into account their impacts.

To compare the effectiveness of the policy options, we assess their ability to achieve the specific objectives of the initiative in relation to the problem concerned (see Section 4.2 above), as well as the general objective of the TTBER and Guidelines, namely to ensure the effective protection of competition.

To assess the efficiency of the policy options, we look at how they will affect the costs incurred by businesses to assess the compliance of their agreements with Article 101 TFEU. These costs generally include the fees of external advisers (lawyers and economists), as well as the cost of internal legal advice.

As regards coherence, we assess the policy options against other Commission rules and guidance on the application of Article 101 TFEU, as well as other EU legislation in related fields.

7.1.The TTBER’s market share thresholds for technology markets

7.1.1.Effectiveness

The effectiveness of each option is assessed against its ability to achieve the specific objective of reducing the complexity faced by businesses when they apply the TTBER’s market share thresholds for technology markets, as well as the general objective of ensuring the effective protection of competition, in particular by exempting only those agreements can be assumed to meet the conditions of Article 101(3) TFEU. Exempting agreements that cannot be assumed to meet those conditions – and therefore whose efficiencies cannot be assumed to outweigh their anti-competitive effects – would hinder the Commission, NCAs and national courts from enforcing Article 101 TFEU, creating a risk of under-enforcement 216 .

Compared to the baseline, both options would simplify the application of the market share thresholds for technology markets and increase legal certainty for businesses, albeit to different degrees and in different market contexts. Option 1 would introduce targeted clarifications and amendments, addressing early licensing – a context in which market definition and market share calculation are likely to be more complex for businesses. Specifically, Option 1 would enhance legal certainty for early licensing by clarifying that businesses may postpone the assessments required for market definition and market share calculation for a number of years from the date of licensing and, by extending the duration of this simplification. Option 2 would simplify the compliance assessment task in market contexts where there were at least three other substitutable technologies in addition to those controlled by the parties. In that scenario, the parties would have legal certainty that their agreement fell within the block exemption, without the need to calculate market shares. However, this option would also entail a substantial risk of block-exempting agreements with potential anti-competitive effects. Accordingly, any combination including Option 2 would reduce the effectiveness of the TTBER and Guidelines in achieving the general objective of protecting competition.

7.1.2.Efficiency

Compared to the baseline, all the options are likely to reduce the compliance assessment costs of businesses that enter into technology transfer agreements. However, while Option 1 is expected to generate a significant reduction in costs, the reduction associated with Option 2 is likely to be only marginal.

7.1.3.Coherence

None of the options would affect the coherence of the TTBER and Guidelines with other Commission rules or guidance on the application of Article 101 TFEU, as the changes introduced would not conflict with those rules and guidance. Furthermore, since the options concern only the application of the TTBER’s market share thresholds (which define the scope of the block exemption), they would not affect the coherence of the TTBER and Guidelines with other EU legislation relevant to technology transfer agreements.

Option 1 also complements EU strategies to facilitate knowledge valorisation by public research organisations 217 and to enable start-ups to better capitalise on new opportunities 218 , primarily by simplifying the application of the TTBER’s market share thresholds in scenarios of early licensing.

7.1.4.Preferred option 

In view of the above, the preferred option regarding the TTBER’s market share thresholds for technology markets is Option 1. This option is the most effective at simplifying the application of the existing rules while avoiding the risk of under-enforcement. It also reduces compliance costs for businesses and ensures coherence with other relevant EU legislation. Option 1 would also have an overall positive impact on competition, since it provides more legal certainty for businesses – especially in the context of early licensing – and thereby incentivises them to enter into pro-competitive technology transfer agreements. This combination would also have a positive impact on businesses, including SMEs, and an indirect positive impact on innovation and competitiveness.

7.2.Data licensing

7.2.1.Effectiveness

The effectiveness of each option is assessed against its ability to achieve the specific objective of facilitating the assessment of data licensing agreements under Article 101 TFEU, as well as the general objective of ensuring the effective protection of competition by minimising the risk of under-enforcement.

Compared to the baseline (no guidance), both options would provide guidance to businesses active in data licensing, albeit to different degrees, and therefore would be effective in achieving the specific objective. Under Option 1, the guidance would cover only agreements for the licensing of data that falls within the definitions of technology rights (including know-how) already covered by the TTBER. Under Option 2, the guidance would also cover the licensing of databases covered by copyright or the database sui generis right.

As regards the general objective of protecting competition, Option 1 would be safer, as it would be limited to the licensing of data that already qualifies as a technology right or know-how under the TTBER. These data licensing agreements are less likely to produce anti-competitive effects on the market. By contrast, the pro-competitive nature of the additional data licensing agreements that would be covered by the guidance provided under Option 2 is more untested, given the lack of enforcement experience and the fast-evolving nature of data licensing. That said, stakeholders, the academic literature and the Expert Report on Data Licensing all confirmed the generally pro-competitive nature of data licensing. Moreover, the risk that positive guidance is provided in respect of anti-competitive agreements is limited by the fact that such guidance would focus on the licensing of those types of data (databases protected by copyright or the database sui generis right) that most resemble the technology rights already covered by the TTBER.

Overall, Option 2 would go further in achieving the specific objective of facilitating the assessment of data licensing agreements under Article 101 TFEU. On the other hand, there is a possibility that Option 2 could be less effective than Option 1 in achieving the general objective of protecting competition. However, provided the guidance is carefully formulated, this risk appears small.

7.2.2.Efficiency

Compared to the baseline, both options are likely to reduce costs for businesses wishing to enter into data licensing agreements, as the additional guidance would reduce the cost of assessing the compliance of agreements with Article 101 TFEU. Given that Option 2 would provide guidance for more types of data licensing agreement, that option would reduce compliance costs to a greater extent.

7.2.3.Coherence

Neither option would affect the coherence of the TTBER and Guidelines with other Commission rules or guidance on the application of Article 101 TFEU, as the new guidance would not conflict with those rules and guidance.

By facilitating pro-competitive data sharing, both options would be coherent with Commission’s strategy in relation to data 219 and the primary legislation in this area (the Data Act). 

7.2.4.Preferred option 

In view of the above, the preferred option for data licensing is Option 2. This option, which would provide more extensive guidance than Option 1, would be more effective in achieving the specific objective of facilitating the assessment of data licensing agreements under Article 101 TFEU. It would also reduce businesses’ compliance assessment costs to a greater extent than Option 1. This cost reduction would be particularly beneficial for SMEs, which often do not have a large budget for competition law assessments. Lastly, Option 2 would have an indirect positive impact on innovation and competitiveness, and is coherent with the Commission’s policy of promoting data sharing.

7.3.Licensing negotiation groups

7.3.1.Effectiveness

The effectiveness of each option is assessed against its ability to achieve the specific objective of facilitating the assessment of LNGs under Article 101 TFEU, as well as the general objective of ensuring the effective protection of competition.

As regards the specific objective, both options would be more effective than the baseline (no guidance). By including a soft safe harbour, Option 2 would make the guidance more concrete and – for businesses that chose to design their LNGs in accordance with the safe harbour – would provide a higher level of legal certainty.

As regards the general objective of protecting competition, Option 1 would be effective, first, because the new guidance would warn businesses about the possible anti-competitive effects of LNGs and indicate measures that they could take to avoid infringing Article 101 TFEU. Second, because it would preserve the Commission's ability to intervene against anti-competitive LNGs. Option 2 would be less effective than Option 1 in achieving the general objective, because the soft safe harbour would limit the Commission’s ability to intervene against LNGs that fell within the soft safe harbour but nonetheless produced anti-competitive effects. Preserving the Commission’s ability to intervene is particularly important in relation to a novel type of agreement for which there is little enforcement experience.

7.3.2.Efficiency

Compared to the baseline, both options would reduce the compliance assessment costs of businesses. Option 2 could reduce these costs more than Option 1, because businesses would be able to ensure compliance with Article 101 TFEU simply by designing their LNGs in accordance the conditions of the soft safe harbour.

7.3.3.Coherence

Neither option would affect the coherence of the TTBER and the Guidelines with other Commission rules or guidance on the application of Article 101 TFEU, as the new guidance would not conflict with those rules and guidance. Indeed, the new guidance on LNGs applies an analytical framework that is similar to the framework used in the guidance on joint purchasing in Chapter 4 of the Commission’s Horizontal Guidelines 220 . The proposed guidance is also coherent with other relevant EU legislation. 

7.3.4.Preferred option 

The preferred option for licensing negotiation groups is Option 1 (providing new guidance on the competitive assessment of LNGs, without a soft safe harbour). This option is efficient, because it would reduce compliance assessment costs for businesses, and coherent with other Commission rules and guidance on the application of Article 101 TFEU and other relevant EU legislation. This option is also effective because it provides guidance on the competition law assessment of LNGs, thereby increasing legal certainty for businesses, while achieving the general objective of ensuring the effective protection of competition. This option would also have neutral or positive impacts on competition in the market, on businesses (including SMEs) and on the dissemination of technology and innovation.

7.4.REFIT (simplification and improved efficiency)

The TTBER is a block exemption regulation and therefore a simplification tool, as block exemptions provide a simplified set of rules for businesses to assess the compliance of their agreements with Article 101 TFEU. The preferred policy options maintain the structure and analytical framework of the existing TTBER and Guidelines, including the TTBER’s market share thresholds and lists of hardcore and excluded restrictions, which are necessary to ensure that only agreements that fulfil the conditions of Article 101(3) TFEU are block-exempted.

Against the baseline of the current TTBER and Guidelines, the preferred policy options introduce revisions that simplify the practical application of the rules. In particular, simplification is achieved through clearer guidance on the application of the TTBER’s market share thresholds for technology markets, together with a one-year extension of the grace period, which reduces the need for early and repeated calculations of market shares. In addition, new guidance on data licensing and LNGs addresses two market developments in respect of which stakeholders reported legal uncertainty. This facilitates more straightforward compliance assessments in these areas.

7.5.Application of the ‘one in, one out’ approach 

This initiative does not create administrative costs for businesses or citizens. On the contrary, the preferred policy options are expected to reduce compliance costs for businesses. The revisions update and clarify the existing rules while maintaining their general structure and analytical framework, and are expected to simplify businesses’ compliance assessments. The proposed new guidance on data licensing and LNGs does not create obligations. Its purpose is to help businesses to assess the compliance of these recent types of agreements with Article 101 TFEU. This promotes legal certainty and reduces complexity.

The expected compliance cost reductions for businesses have been assessed and quantified to the extent possible in Sections 6.1.2, 6.2.2 and 6.3.2, as well as in Annex 3 of this report.

8.How will actual impacts be monitored and evaluated?

The revised rules are expected to remain in force for a period of 12 years. This duration will allow the Commission to gather sufficient experience on their functioning. It also ensures regulatory stability and predictability for businesses, also taking into account the timing of technology uptake.

Before the expiry of the TTBER in April 2038, the Commission will carry out a full evaluation, taking into account the results of the monitoring activities set out below. The Enabling Regulation also empowers the Commission to amend or repeal the TTBER before its expiry date if relevant circumstances change 221 . The mechanisms set out below will enable the Commission to establish whether any such changes occur.

8.1.Data collection 

Monitoring will primarily assess progress toward the three specific objectives of the initiative, which operationalise the general objective set out in Section 4.1 of this report.

Monitoring will rely on existing channels and form part of DG Competition’s usual policy follow-up, without creating new reporting obligations for the Commission or stakeholders. Information will be reviewed on an ongoing basis, and internal stock-taking may be organised where meaningful evidence emerges.

European Competition Network (“ECN”): regular exchanges with NCAs, including at the biannual meetings of the ECN Article 101 working group, allow the Commission to monitor how the revised TTBER and Guidelines are applied in practice. Although the evaluation showed that NCAs have had limited enforcement experience with technology transfer agreements in recent years, these exchanges will still help to identify issues arising at national level, including questions of interpretation or relevant market developments. Where appropriate, these exchanges will be complemented by bilateral contacts on specific cases.

Stakeholder engagement: the Commission will continue to gather information through conferences, meetings and informal exchanges. The nature and recurrence of stakeholder questions or requests for guidance under the Informal Guidance Notice will be tracked internally. Monitoring will focus not only on the volume of such requests, but also on their nature, recurrence and evolution over time, as indirect indicators of how the revised framework is used in practice. A reality check workshop will complement continuous stakeholder engagement before the next evaluation.

Enforcement practice: Although enforcement cases in the area of technology transfer has been limited in recent years, the Commission will monitor any future cases at Union or national level, and the relevant case law. Information collected will be used to assess legal certainty and identify potential competition risks.

Desk research and market monitoring: The Commission will continue to monitor available information and studies on technology licensing. This will help to identify market trends and serve as indirect indicators to provide context for issues raised by stakeholders and assess whether the rules remain fit for purpose as technology markets evolve.

8.2.Indicators and monitoring framework 

The indicators set out in the table below do not set quantitative targets. They will be interpreted in the broader context of the Commission’s competition law enforcement practice, taking into account its decentralised nature and the fact that the TTBER and Guidelines are voluntary tools aimed at facilitating businesses’ compliance assessments. Monitoring will focus on developments over time, in particular whether the revised framework facilitates compliance assessments by businesses under Article 101 TFEU in the areas identified in the evaluation.

While the monitoring indicators are mainly about outputs, they can also reflect broader outcomes without creating additional administrative burdens. For instance, changes in the nature of stakeholder questions over time, such as fewer recurring issues indicating structural uncertainty and reliance on the revised framework, may serve as indicators of improved legal certainty. Where no or only limited issues are raised, this may also indicate that the revised framework facilitates compliance assessments, provided this is corroborated by other monitoring sources.

Progress will be assessed in comparison to the baseline set out by the evaluation findings and stakeholder feedback collected during the impact assessment phase. Success will be reflected in evidence that the recurring difficulties and legal uncertainty are largely resolved. A simple variation in the number of questions or issues reported may not automatically measure success. This is because it could also be influenced by other factors such as market developments or greater use of the revised framework.

8.3.Limitations and proportionality

As outlined in this report 222 , it is not feasible to define fully quantitative or direct impact indicators for this initiative. The TTBER and Guidelines provide a voluntary framework for businesses to assess the compliance of their agreements with Article 101 TFEU and do not impose obligations, require notifications or produce data that would allow direct measurements of businesses’ behaviour, compliance costs or market outcomes, or to attribute them to the revised rules.

In particular, the monitoring framework cannot directly measure pro-competitive benefits or anti-competitive harm in quantitative terms. Any effects on technology- and data licensing depend on a wide range of factors that cannot be isolated and directly linked to this initiative.

Therefore, the monitoring relies mainly on qualitative indicators and outcome proxies drawn from existing sources, which will also allow the Commission to identify potential competition concerns or practices that require closer scrutiny. This approach is proportionate, avoids additional administrative burdens and is consistent with standard practice in competition law enforcement. Further quantitative evidence may be integrated into future monitoring if reliable and relevant data become available over time.

Annex 1: Procedural information

1.Lead DG and Decide Planning references

The Directorate-General for Competition of the European Commission ("DG Competition") is the lead DG for the revision of Commission Regulation (EU) No 316/2014 of 21 March 2014 on the application of Article 101(3) TFEU on the Functioning of the European Union to categories of technology transfer agreements and the Communication from the Commission - Guidelines on the application of Article 101 TFEU on the Functioning of the European Union to technology transfer agreements.

The review was registered in Decide Planning with the references PLAN/2024/2700 and PLAN/2024/2701.

2.Organisation and timing

The impact assessment phase was launched in January 2025, following the publication of the Evaluation Report, which summarised the results of the evaluation of the TTBER and Guidelines. The impact assessment was carried out in cooperation with other interested Commission services. The inter-service steering group ("ISG") set up for that purpose comprised representatives of Directorates-General AGRI, CLIMA, CNECT, DEFIS, ECFIN, ENER, ENV, FISMA, GROW, JUST, MOVE, RTD, SANTE, TRADE and the Secretariat-General and Legal Service.

The impact assessment of the TTBER and Guidelines was also carried out in cooperation with the National Competition Authorities ("NCAs"), which were consulted on the policy options and on the draft revised rules. The milestones of the impact assessment phase are shown in the following table.

3.Consultation of the RSB

An upstream meeting with the RSB took place on 2 July 2025 to discuss DG Competition's Impact Assessment report for the revised TTBER and Guidelines. In this respect, the RSB members emphasised the need for a clear description of the problems to be addressed through the intervention and the need for evidence and quantitative data for support to the extent possible. Also, the impact of technological as well as market developments were signalled as important elements to analyse. DG Competition highlighted the limited quantitative evidence that it had been able to gather on the performance of the TTBER, in particular on the potential compliance assessment cost savings and the potential positive impacts of the rules in terms of increased dissemination of technology.

The meeting of the Regulatory Scrutiny Board (RSB) took place on 14 January 2026. The outcome was a positive opinion with reservations, issued on 16 January 2026. The following table provides information on how the comments made by the RSB were addressed in this Impact Assessment report:

4.Evidence, sources and quality

DG Competition obtained evidence from a wide range of sources to inform this initiative. In addition to the Better Regulation tools used for initiatives involving impact assessments, such as the call for evidence, the open public consultations and the direct consultation of stakeholders in the reality check workshop, the consultation strategy included a broader effort to incentivise stakeholder engagement to counterbalance the well-known challenges of collecting quantitative evidence regarding the use of antitrust block exemption regulations. These challenges were also encountered in the recent revisions of the block exemption regulations for vertical agreements (in 2022) and horizontal agreements (in 2023).

First, DG Competition took advantage of competition law conferences and workshops to publicise the initiative and invite authorities, academics, businesses or law practitioners to engage.

Second, DG Competition held meetings with individual stakeholders, at which it encouraged participation in the consultation activities and gathered targeted feedback on specific issues. These meetings enabled the collection of additional qualitative evidence.

Third, DG Competition attended the regular meetings of the European Competition Network and the EFTA Surveillance Authority (see Annex 2, Section 2.4 for more details), to update those authorities on the progress of the initiative and to encourage them to raise awareness of the initiative in their respective jurisdictions.

Fourth, DG Competition extended the outreach beyond the usual stakeholder groups by communicating about the consultation activities on DG Competition’s website, through the Commission’s usual communication channels but also through posts on social media and via direct communication with stakeholders who had contributed during the evaluation phase.

Lastly, DG Competition commissioned an expert study to inform the impact assessment on one of the areas of the rules for which policy options were identified: data licensing agreements. The objective of the study was to provide the Commission with expert advice on (i) the types of intellectual property rights or other forms of non-contractual legal protection that can apply to data that is licensed for the purposes of production and (ii) the possible pro- and anti-competitive effects of such data licensing agreements. The study was conducted by Professor Peter Georg Picht, a professor with extensive experience in the fields of intellectual property and competition law.

Annex 2: Stakeholder consultation (Synopsis report)

1. INTRODUCTION

Various consultation activities were carried out to collect information and data for the revision of the TTBER and the Guidelines. This Annex presents the results of the consultation activities.

The Commission mapped the stakeholder groups primarily concerned by the revision of the TTBER and Guidelines, based on the consultations conducted during the evaluation phase. This resulted in the identification of the following stakeholder groups:

(I)businesses with operations in the EU, in particular:

-undertakings that hold and license intellectual property rights (IP holders);

-undertakings that obtain licences and implement such rights in their products and services (IP implementers);

-undertakings that manage licensing platforms and standard-setting organisations;

-undertakings responsible for technology transfer and research commercialisation in universities (e.g. technology transfer offices).

(II)law firms advising stakeholders on related competition issues;

(III)industry associations;

(IV)associations of law firms; and

(V)academics specialising in EU competition law and, in particular, technology transfer agreements.

The consultation activities consisted of:

·a call for evidence

·an open public consultation based on an online questionnaire;

·an open public consultation on draft revised TTBER and Guidelines;

·a stakeholder workshop (reality check);

·consultations with National Competition Authorities (“NCAs”) and Member States.

The consultation activities mentioned in this Annex aimed to gather input from stakeholders on the policy options proposed for the revision of the TTBER and Guidelines and on other proposals to update and clarify the rules.

2. RESULTS OF THE CONSULTATIONS

2.1. Call for evidence and open public consultation based on an online questionnaire

A call for evidence (four weeks) and a public consultation (twelve weeks) were launched in parallel on 31 January 2025 on the Have Your Say portal.

The call for evidence was published in all 24 official EU languages. The public consultation questionnaire was published in the Commission’s three working languages (English, French and German). The call for evidence generated 13 replies, mainly from businesses (7 respondents), business associations (5 respondents) and one research centre.

Regarding the public consultation, a summary report of the open public consultation was published on 11 September 2025 223 . Of the 34 respondents, 21 replies were from business organisations, 8 from business associations, 3 from “other” stakeholders and 2 from academic/research institutions. The majority of the respondents (59%) were larger organisations, though all size categories were represented (see Figure 1 below).

Figure 1 – Size of the respondent organisations

The respondent business associations were either national or Union-wide and represented members in specific industrial sectors or economic activities (e.g. licensing). The respondent businesses were mainly active in the ICT industry and car manufacturing, but also in the chemical and energy sectors. The academic/research organisations were two universities, one in the EU and one in the USA. The “other” respondents were a consultant, a lawyer, and an individual identifying as both an academic and a lawyer.

As regards their activities in relation to the licensing of technology, 15 respondents were active as a licensor and a licensee to an equal extent (or represent both licensors and licensees to an equal extent) 224 , 9 respondents were active only as licensees (or primarily represented licensees) 225 , and 6 respondents 226  were active only as licensors or primarily represented licensors. The remaining respondents (3) 227  were neither licensors nor licensees nor organisations representing them 228 .

Summary of the responses

The call for evidence and public consultation sought the views of stakeholders on possible changes in the following areas: (i) the possible introduction of new guidance on the assessment of data licensing under Article 101 TFEU (ii) the TTBER’s market share thresholds for technology markets; (iii) the possible introduction of new guidance on the assessment of licensing negotiation groups (“LNGs”), and (iv) the existing guidance on the assessment of technology pools 229 .

In addition, stakeholders were asked to provide feedback on certain other areas of the TTBER and Guidelines to help the Commission assess if the current rules could be improved 230 .

(I)Data licensing

The evaluation indicated that data licensing agreements are increasingly common, and some stakeholders called on the Commission to provide guidance in this area. At the time, the TTBER and Guidelines did not provide specific rules or guidance on data licensing.

The public consultation questionnaire asked stakeholders whether they had entered into agreements which included a transfer or licence of data in the last five years 231 . The majority of respondents answered affirmatively, with 12 respondents 232 confirming that they had entered into such agreements in the last five years and only 2 respondents 233 stating that they had not 234 .

Moreover, when asked about the general effects on competition of data licensing agreements 235 , the majority of respondents (8) 236 indicated that data licensing creates more pro-competitive than anti-competitive effects, 4 respondents 237 answered that data licensing generates only pro-competitive effects and only 1 respondent 238 answered that data licensing generates similar level of pro-competitive and anti-competitive effects in the market 239 . That said, when asked if data licensing agreements commonly include clauses that can restrict competition 240 , many respondents (13) 241 answered affirmatively by pointing to at least one such clause, most often citing field-of-use restrictions (10 respondents) and exclusivity clauses (6 respondents).

Regarding possible options to provide guidance on data licensing agreements 242 , 7 respondents 243 favoured a possible expansion of the scope of the TTBER, 1 respondent 244 answered negatively and 4 responded 245 that they did not know (see Figure 2 below)  246 .

Figure 2 – Possible expansion of the scope of the TTBER to certain data licensing agreements

That said, 4 respondents 247 doubted that certain rules included in the TTBER could be easily (or at all) applied to the licensing of all types of data. When prompted to elaborate, 2 of these respondents 248 highlighted that agreements relating to raw data (i.e. data that has not been processed by the data holder) are particularly unsuitable to be assessed under the TTBER framework, because such data is not generally an IP-protected technology. 3 of them 249 considered that the TTBER’s current lists of hardcore restrictions and excluded restrictions are not similarly applicable to data licensing.

Asked whether, in the alternative, the provision of guidance on data licensing in the Guidelines would increase legal certainty 250 , 8 respondents 251 agreed, with only 1 respondent 252 opposing such an option and 2 respondents 253 answering that they did not know (see Figure 3 below)  254 .

Figure 3 – If no expansion of the scope of the TTBER, would guidance on data licensing agreements in the Guidelines still provide legal certainty?

In the call for evidence, respondents recognised that data has become an increasingly valuable economic asset, which plays a central role in many technology transfer relationships and favours the provision of guidance on data licensing.

(II)TTBER market share thresholds for technology markets

In the public consultation questionnaire, stakeholders were asked whether they had experienced practical difficulties in applying the TTBER’s market share thresholds for technology markets and the 4+ test in the Guidelines.

The majority of respondents (9) 255 reported practical difficulties in applying the TTBER’s market share thresholds for technology markets 256 , with only 1 respondent 257 answering that it did not experience such difficulties 258 . Results for the 4+ test were similar: 7 respondents 259 reported practical difficulties in applying it 260 and 2 respondents 261 answered that they did not encounter difficulties 262 .

That said, the majority of respondents still entered into technology transfer agreements even when they encountered practical difficulties in calculating market shares (7 respondents) 263 or in applying the 4+ test (3 respondents) 264 .

When asked whether removing the market share thresholds for technology markets, leaving only the market share thresholds for product markets 265 , would help to achieve the objectives of the TTBER, 6 respondents 266 favoured this option, 4 opposed it 267 and 3 answered that they did not know 268 (see Figure 4 below) 269 .

Figure 4 – Would the removal of the market share thresholds for technology markets help achieve the objectives of the TTBER?

When asked whether replacing the TTBER’s market share thresholds for technology markets with a condition based on the existence of a certain number of independently controlled substitute technologies would achieve the objectives of the TTBER, 5 respondents 270 answered “Yes”, 7 respondents 271 answered “No” and 2 respondents 272 answered “Do not know” (see Figure 5 below) 273 .

Figure 5 – Would replacing the market share thresholds for technology markets with a condition based on the existence of substitute technologies help achieve the objectives of the TTBER?

When asked whether the application of the TTBER’s market share thresholds for technology markets could be improved by providing for alternative methodologies or metrics for calculating market shares in addition to the footprint methodology 274 , the results were also mixed: 4 respondents answered positively 275 , 5 respondents 276 answered negatively and 4 277 answered that they did not know 278 .

In the same vein, some respondents to the call for evidence reported practical difficulties when calculating market share thresholds in technology markets, arguing that it is difficult to define market boundaries, identify substitutes, or measure market shares. They stressed that technology markets evolve quickly, often revolve around early-stage innovation rather than commercialised products, and may be inherently concentrated without implying harm to competition. As a result, some stakeholders called for greater flexibility, for example by placing less emphasis on market share calculations or by substituting them with an assessment centred on the availability of substitute technologies rather than strict percentage-based thresholds. Overall, the respondents who commented on the market share thresholds suggested clarifying and simplifying their operation.

(III)Licensing negotiation groups (“LNGs”)

Respondents to the public consultation questionnaire were divided over whether the Commission should provide guidance on the assessment of LNGs under Article 101 TFEU 279 . When asked if the Commission should provide such guidance, 14 respondents 280 answered positively, 12 respondents 281 answered negatively, and 3 respondents 282 answered that they did not know (see Figure 6 below) 283 .

Figure 6 – Should the Commission provide guidance on LNGs?

Regarding the possible anti-competitive effects of LNGs 284 , stakeholders mentioned less innovation in the market resulting from lower R&D investment by technology owners (12 responses), lower quality or choice of downstream products (10), and higher downstream prices (7).

Regarding the possible pro-competitive effects of LNGs 285 , stakeholders mentioned lower downstream prices (12 responses), higher quality or more choice for downstream products (12), and increased innovation in the market from licensees, including follow-on innovation (12).

Similarly to the replies to the public consultation, stakeholder feedback to the call for evidence was also highly polarised, with a clear divide between technology implementers (who view LNGs as potentially beneficial) and technology owners/pool administrators (who are strongly sceptical or opposed). On the one hand, implementers considered LNGs to be potentially pro-competitive, arguing that they could help address “collective-action problems” faced in SEP licensing. These stakeholders claimed that implementers may be reluctant to take licences unless their competitors do the same, and that LNGs could provide a structured mechanism to achieve balanced negotiations, reduce transaction costs, and limit opportunities for patent hold-up. They therefore encouraged the Commission to consider LNGs as legitimate coordination tools, subject to appropriate safeguards. On the other hand, technology owners and pool administrators expressed strong reservations about LNGs. They warned that LNGs may function as buyer cartels, enabling downstream competitors to coordinate on licensing strategies, share sensitive information and exert joint bargaining power on patent owners. Many noted that LNGs could facilitate collective hold-out and delay negotiations. Several emphasised the absence of any meaningful practical experience with LNGs in Europe, arguing that their competitive effects remain uncertain at best and potentially harmful. These stakeholders also opposed introducing a soft safe harbour for LNGs, arguing that LNGs should be assessed on a case-by-case basis, and that safe-harbour treatment would risk legitimising forms of coordination that are incompatible with Article 101 TFEU.

(IV)Guidance on technology pools and other updates to the rules

In the public consultation questionnaire, stakeholders were asked whether improvements were needed to the soft safe harbour for technology pools. Overall, respondents considered that the framework functions well, with mixed views as to which adjustments could improve its operation.

On the question whether there is a need for specific improvements to ensure that only technologies essential to a standard are included in the pool 286 , respondents were almost equally divided: 15 respondents 287 answered affirmatively while 14 respondents 288 answered negatively (see Figure 7 below) 289 .

Figure 7 – Are there any specific improvements needed to ensure that only essential patents are included in technology pools within the soft safe harbour?

In response to a question about whether there is too much information exchange between technology pools and their members 290 , 14 respondents 291 answered “No”, 11 respondents 292 answered “Yes” and 4 respondents 293 answered that they did not know 294 .

Figure 8 below 295 reports on the feedback to questions relating to the transparency of technology pools 296 . There was a relatively clear division of views between technology implementers – who advocated for increased transparency – and technology owners, who did not see a need for it.

Figure 8 - Do you believe that the Guidelines adequately address the need for transparency in relation to the following issues?

When asked whether they had experienced issues with double dipping or overlapping patents when dealing with technology pools 297 , 13 respondents 298 answered “Yes”, 12 respondents 299 answered “No”, and 4 respondents 300 answered “Do not know” 301 .

Similar feedback was provided in response to the call for evidence, with stakeholders broadly recognising the pro-competitive role of technology pools, particularly in sectors relying on SEPs. Respondents representing SEP holders, pool administrators and R&D-intensive companies emphasised that pools reduce transaction costs, prevent royalty stacking, facilitate access to technology - especially for SMEs - and contribute to greater licensing transparency. These stakeholders generally considered the current soft safe harbour to be appropriate and effective.

A smaller group of stakeholders representing implementers acknowledged the usefulness of pools but raised concerns about certain practices, including inconsistent essentiality assessments and double dipping (implementers being charged twice for the use of the same rights). They called for clearer guidance to support transparency and ensure that pools do not facilitate market power or weaken FRAND safeguards. Overall, while views differed on the adequacy of existing safeguards, the call for evidence revealed broad support for maintaining the soft safe harbour for technology pools, to be complemented by targeted clarifications rather than structural reforms.

The feedback to the call for evidence and public consultation questionnaire also included calls for technical amendments in several other areas, including clarifications to key definitions (e.g. potential competition, active/passive sales), updates to guidance affected by recent case law (e.g. the guidance on patent dispute settlement agreements), and the alignment of certain definitions and provisions of the TTBER and Guidelines with other recently revised block exemption regulations. Practitioner associations emphasised the continued value of the TTBER and Guidelines as sources of legal certainty and encouraged the Commission to undertake targeted rather than structural changes.

2.2. Open public consultation on the draft revised TTBER and draft revised Guidelines

Between 11 September and 23 October 2025, the Commission held an open public consultation on draft revised TTBER and Guidelines. The drafts were published in all the official EU languages. The consultation generated 46 contributions.

Profile of respondents

Of the 46 contributions, 19 emanated from business organisations, 16 were business associations (including 2 associations of lawyers), 3 academic/research institutions, 4 public authorities, 2 citizens (1 EU and 1 non-EU) and 1 non-profit organisation (see Figure 1 below).

Figure 1: Profile of respondents

Among businesses and business associations, the most represented sectors included the automotive, telecommunications and electronics sectors.

Stakeholder feedback

a.Feedback on the areas for which policy options were considered

Market share thresholds for technology markets

17 stakeholders provided feedback on the TTBER’s market share thresholds for technology markets. The majority was generally positive about the changes introduced in the draft revised texts (which concerned primarily the treatment of technologies that have not yet generated product sales and the extension of the grace period). Some of them expressed a preference for further amendments, such as lowering the thresholds. A minority criticised the changes and advocated removing the market share thresholds for technology markets altogether.

Data licensing

Around 15 respondents provided feedback on the proposed guidance on data licensing agreements. Almost all the respondents confirmed the need for guidance on the competition law assessment of data licensing agreements and supported the provision of guidance by the Commission.

Stakeholders were divided on whether the scope of the guidance provided in the draft revised Guidelines should be expanded to other types of data. Moreover, respondents favoured extending the scope of the TTBER to the licensing of databases protected by copyright or by the database sui generis right.

302 303 Some respondents also had other remarks, mainly to (i) request additional guidance in the Guidelines on the application of the proposed new rules to the licensing of datasets pursuant to the Data Act and (ii) ask for examples or clarifications on the application of certain paragraphs.

Licensing negotiation groups (LNGs)

304 Around 30 stakeholders commented on the draft guidance on LNGs. Similarly to the results of earlier consultations, technology owners and technology implementers expressed strongly opposing views. Technology owners considered that the Commission should not provide guidance on LNGs, stating that this would encourage the formation of LNGs, which they regard as a form of buyer cartel that will result in coordinated hold-outs and excessive buyer power, allowing implementers to drive down royalty rates to sub-competitive levels. By contrast, technology implementers welcomed the draft guidance, saying that it provides legal certainty for a form of collective negotiation that is capable of reducing transaction costs and information asymmetries between licensors and prospective licensees, thereby promoting more informed and balanced licensing negotiations and an increased uptake of technology licences, in particular by SMEs.

305 Regarding the soft safe harbour included in the draft guidance, technology owners considered that providing a soft safe harbour is premature, on the basis that LNGs are a new practice and the Commission has insufficient enforcement experience to formulate the safe harbour effectively. By contrast, implementers welcomed the additional legal certainty provided by the safe harbour and considered that it provides a balanced framework for collective negotiations in cases where a technology owner has freely chosen to engage with an LNG.

b.Feedback on other areas

Technology pools

306 Most comments concerned the proposed clarifications to the conditions of the soft safe harbour in the Guidelines, in particular the conditions relating to the essentiality of the technology rights included in the pool. It was recognised that the requirement to disclose the technology rights included in the pool reflected existing best practices amongst pools, though some technology owners and pool administrators cautioned that exhaustive disclosure of the technology rights and essentiality checks could have limited use for implementers. Some technology owners and pool administrators opposed any amendments to the soft safe harbour. The safeguard against double dipping (the charging of duplicate royalties for the same technology rights) was generally well received, as it aligns with existing pool best practices.

Other areas of the rules

A limited number of stakeholders provided comments on other areas, such as the concept of potential competitor and the guidance on patent settlement agreements, emphasising the need for further guidance based on the most recent case law.

2.3. Reality check workshop

The Commission organised an online “reality check” workshop on 11 November 2025 to gather information about how the proposed revisions of the rules would operate in real life and how they might affect business incentives and practices, with the aim of ensuring that the revised TTBER and Guidelines are well targeted and effective in delivering their intended benefits.

The reality check focussed on the proposed new guidance on licensing negotiation groups, the competition law assessment of certain types of data licensing and the clarifications to the guidance on technology pools.

More than 80 participants attended the workshop. They represented businesses, industry associations, law firms, academics and National Competition Authorities. The workshop consisted of three sessions covering (i) technology pools; (ii) licensing negotiation groups, and (iii) data licensing agreements. At the start of the workshop, the participants were surveyed about the costs that they incur to assess the compliance of their technology licensing agreements with Article 101 TFEU. The questions and the feedback are presented below.

Participants received an issues paper in advance of the workshop, which was intended to structure the workshop discussions. Representatives from DG Competition acted as moderators during the three sessions. A summary of the feedback provided by stakeholders at the workshop is provided below.

Survey on compliance costs

The workshop participants were asked six questions about their compliance assessment costs using the Slido platform. Of the 82 participants, 65 engaged with the questions, but the number of respondents varied between questions. The responses were anonymised.

Profile of the respondents to the survey

Of the 59 respondents to the first question, 20 were business organisations, 12 law firms, 8 were business associations, 8 public authorities, 3 universities/or academic institutions, and 8 “other” 307 . Figure 1 below provides a breakdown of the respondents by category.

Figure 1 – Which best describes your organisation?

Of those that answered “business” in the first question, the vast majority of participants (15) were large businesses 308 . The rest were micro-SMEs (3), small SMEs (2), medium-size SMEs (2), and small mid-caps 309 (2)  310 . Figure 2 below provides a breakdown of the respondents by size (see Figure 2 below).

Figure 2 – If you answered "Business" in Q.1, please specify the size of your business

Concerning the number of technology licensing agreements signed by the participants on average per year, of the 34 respondents, 10 signed between 21 and 100 agreements, another 10 between 1 and 10, 6 respondents signed more than 100, 5 respondents did not sign any agreements and 3 between 11 and 20 (see Figure 3 below).

Figure 3 – On average, how many technology licensing agreements does your organisation sign or advise on per year?

Regarding the (average) time and resources spent on compliance with EU competition law, 10 respondents replied that the question was not applicable. Of the respondents who considered it applicable, 8 spend between 1 and 3 person-days, 7 more than 5 person-days, 6 less than 1 person-day and 3 between 3 and 5 person-days. Figure 4 below provides a breakdown of the respondents by time/resources spent on assessing compliance.

Figure 4 – How much time and resources does your organisation spend on assessing the compliance of licensing agreements with EU competition law (average cost per agreement)?

Regarding the impact of the TTBER and Guidelines on compliance assessment costs for technology agreements, several of the 35 respondents replied that the question was not applicable. Of the respondents who considered it applicable, most of them (9 respondents) considered that the rules lead to a significant reduction in costs, 6 respondents found a small reduction in costs, 3 respondents a very significant reduction in costs and 2 an insignificant or no reduction in costs (see Figure 5 below).

Figure 5 – How do the TTBER and Guidelines affect your compliance assessment costs, compared to assessing agreements using only Article 101 TFEU and the case law?

Using this data, it is possible to estimate that the average reduction in cost is around 33%.

Finally, regarding the assessment costs of market share calculations, more than half of the 34 respondents replied that the question was not applicable (53%), whereas 6 considered they spend a significant share of their compliance costs on market share calculations, another 6 respondents spent a small share and 4 respondents spent none or an insignificant share of their compliance costs on market share calculations. Figure 6 below provides a breakdown of the respondents by share of compliance costs spent on calculating market shares.

Figure 6 – What share of your compliance assessment costs do you spend on calculating market shares for the purpose of applying the TTBER and Technology Transfer Guidelines?

 Summary of the discussions at the workshop

Session 1: technology pools

The discussion centred on the proposed adjustments to the conditions of the soft safe harbour for technology pools in the Guidelines.

-Disclosure of the pooled technology rights

Participants discussed the type and level of information that licensees require to understand the scope and value of the pooled technology rights. Several stakeholders considered that existing practices - such as disclosing the identity of licensors and making patent lists available - generally provide sufficient information for licensees and have supported the conclusion of thousands of licences. They cautioned against imposing a single form of disclosure. Others favoured broader transparency. They stressed the importance of knowing which patents are included in the pool, which patents have been subject to essentiality checks, how much of the overall technology standard the pool covers, and the methodology and independence of the experts that perform the essentiality checks. Several participants underlined the need for up-to-date information and the need to avoid the charging of royalties for expired patents.

-Examples and feasibility of disclosure practices

Some participants argued that current disclosure practices in established pools show that transparency and efficiency can co-exist. Others noted concerns about the sufficiency of current transparency levels and the need for more granular information.

-Disclosure of essentiality checks

Licensees expressed interest in understanding which patents are checked, how they are selected, and whether essentiality assessments are independent and robust. Several pool operators underlined that essentiality checks are typically conducted for internal purposes (e.g. to allocate royalties between the members of the pool) or on a sampling basis. They cautioned that detailed disclosure could jeopardise confidential technical information. Stakeholders stressed the importance of confidentiality protections when sharing essentiality-related information.

Session 2: Licensing negotiation groups (LNGs)

This session attracted the highest level of engagement and reflected the clear divide observed in the public consultation on the draft revised Guidelines. Technology owners reiterated concerns that the draft guidance - and in particular the proposed soft safe harbour - could incentivise the formation of LNGs and that LNGs are likely to lead to coordinated hold-outs and excessive buyer power. Conversely, technology implementers emphasised that LNGs could reduce transaction costs, mitigate information asymmetries and foster more balanced negotiations. They also said that the guidance provides much-needed legal certainty in a context where LNGs are beginning to emerge in several sectors. Similarly to the results of the public consultation on the draft revised Guidelines, views also diverged strongly on the appropriate scope and safeguards of the soft safe harbour.

-Market definition and the assessment of market power

Participants recognised that defining the relevant licensing market is fundamental for assessing the effects of LNGs but expressed divergent views on the appropriate approach. Some technology owners and pools said that markets should be defined based on the use cases of the technology, noting that licensing terms differ significantly where the same technology is licensed for use in smartphones, cars, smart meters or payment terminals. Others emphasised that technology rights are not comparable to traditional products and that market power should be assessed flexibly. Certain participants underlined bargaining asymmetries, noting that prospective licensees are often already using the technology and that licensors face procedural hurdles to obtain injunctions to enforce their IP rights. Some speakers noted the need to remain consistent with the Commission’s Market Definition Notice and the case law.

-Soft safe harbour

Several representatives of implementers strongly supported including a soft safe harbour, viewing LNGs as a tool to address perceived imbalances in SEP licensing. Other stakeholders warned that LNGs could amplify buyer power - particularly of large implementers - and argued that the Commission should acquire more enforcement experience before proposing a soft safe harbour for LNGs. They therefore favoured a case-by-case assessment. Some implementers stressed the need to consider SME participation and the barriers to entering SEP negotiations. Several participants underlined the importance of market share thresholds to avoid excessive buyer power.

-Voluntary engagement by technology owners and standstill periods

Participants generally agreed that technology owners must remain free to decide whether they engage with LNGs. Several stakeholders expressed concerns that a six-month standstill on bilateral negotiations could encourage delays or weaken implementers’ incentives to negotiate. Others considered that a limited standstill period is acceptable and conducive to the efficiency of collective negotiations.

-Binding nature of LNG outcomes

Some participants argued that, to avoid strategic behaviour, LNG members should be bound by the jointly negotiated terms, similarly to the members of patent pools. Others warned that binding arrangements could resemble a coordinated boycott and stressed that both licensors and implementers must retain the option to negotiate bilaterally.

Session 3: data licensing agreements

Stakeholders broadly welcomed the proposed new guidance on data licensing agreements, confirming the need for legal certainty in an area of growing economic significance. Some suggested ensuring that data shared pursuant to the Data Act can be protected by confidentiality mechanisms without creating uncertainty under competition law.

2.4. Consultation of National Competition Authorities and Member States

As noted in the Evaluation Report, National Competition Authorities (“NCAs”) have little or no recent experience of applying the TTBER and Guidelines 311 . The one NCA that reported some enforcement experience has been more engaged in the consultations, and the Commission services have held bilateral meetings with the NCA to obtain their views.

Nonetheless, all NCAs have been consulted periodically throughout the evaluation and impact assessment via the regular meetings of the European Competition Network. The EFTA Surveillance Authority has also been informed about the progress of the impact assessment. Relevant ministries of the Member States were consulted on the draft revised TTBER and Guidelines at a meeting of the Advisory Committee in September 2025. No comments were received.

2. 5. Stakeholder engagement outside the formal consultations

The Commission services have made themselves available to meet stakeholders throughout the evaluation and impact assessment. They met sector representatives and businesses affected by the initiative, who provided their views and experience on the functioning of the TTBER and Guidelines during the evaluation phase, as well as their views on the draft revised texts published in the impact assessment phase.

Annex 3: Who is affected and how?

1.Practical implications of the initiative

The initiative consists in a revision of the TTBER and the Guidelines. It preserves the structure and framework of the existing rules, which the evaluation confirmed to be useful and relevant for stakeholders.

It is important to recall that the TTBER and Guidelines do not impose obligations on businesses; the competition law obligations of businesses in relation to technology transfer agreements derive from Article 101 TFEU. The TTBER and Guidelines provide a simplified set of rules for businesses to assess the compliance of their technology transfer agreements with the Treaty.

The revised TTBER and Guidelines will primarily affect businesses and, indirectly, the law firms and other professionals who advise businesses on compliance with Article 101 TFEU. The revised TTBER and Guidelines may also have implications for the National Competition Authorities (“NCAs”) and national courts. While the evaluation showed that they have limited recent enforcement experience in relation to technology licensing agreements 312 , it is not excluded that this experience may evolve.  Indirectly, the revised TTBER and Guidelines will also positively affect consumers, but the initiative has no practical implications for them.

Businesses:

Businesses use the TTBER and Guidelines to assess compliance of their technology transfer agreements with Article 101 TFEU. They use the TTBER to assess whether their agreement can benefit from the block exemption, i.e. the legal safe harbour from the prohibition of anti-competitive agreements in Article 101. Businesses use the Guidelines to help them to interpret the TTBER’s conditions. They also use the Guidelines to help them to assess the compliance with Article 101 of agreements that fall outside the block exemption.

In the evaluation, stakeholders confirmed that the TTBER and Guidelines are valuable tools that significantly facilitate the task of assessing the compliance of technology transfer agreements with Article 101 TFEU. As the initiative preserves the structure of the existing framework of assessment, businesses will be able to continue applying the same approach when assessing their agreements. This continuity preserves businesses’ overall familiarity with the system.

At the same time, the initiative addresses the areas where stakeholders reported legal uncertainty or complexity, in particular the application of TTBER’s market share thresholds for technology markets and the lack of guidance on the competition law assessment of data licensing agreements and licensing negotiation groups. By clarifying the rules and providing new guidance in these areas, the initiative increases legal certainty and makes it easier and less costly for businesses to assess the compliance of their agreements with Article 101. As outlined in Section 2.3 of this report and Annex 6, although there was limited direct participation from SMEs in the evaluation and impact assessment, the TTBER and Guidelines are also used by SMEs, and the evidence suggests that greater legal certainty is also helpful for them. Indirectly, law firms and other professionals who advise businesses on compliance with Article 101 TFEU also benefit from a clearer set of rules, which would allow them to advise their clients more effectively.

Enforcement authorities:

The initiative would not have significant practical implications for the Commission, NCAs or national courts. As the TTBER is binding on NCAs and national courts, these authorities would be required to take into account the revised provisions of the TTBER when assessing whether a technology transfer agreement falls within the block exemption. The Guidelines only bind the Commission, but NCAs and national courts typically rely upon the Commission’s guidelines for the purpose of interpreting Commission block exemption regulations and when they apply Article 101 TFEU to the agreements concerned.

The initiative does not substantially alter the framework of analysis provided by the TTBER and the Guidelines. Key provisions of the TTBER, such as the market share thresholds and the lists of hardcore restrictions and excluded restrictions remain unchanged. Enforcement authorities would therefore continue to apply the same overall approach when enforcing Article 101 TFEU. For this reason, the initiative is not expected to generate significant practical changes for the Commission, NCAs or national courts.

The TTBER and Guidelines will also continue to facilitate the enforcement work of competition authorities. While the TTBER and the safe harbour that it provides are primarily intended to assist businesses with their compliance assessments, they also simplify the enforcement work of the Commission and NCAs. When they investigate an agreement, the TTBER enables them to determine efficiently whether it meets the conditions of Article 101(3) TFEU, while the Guidelines provide a framework for assessing technology transfer agreements that fall outside the block exemption. A clearer and more up-to-date set of rules resulting from the initiative would therefore support the effective enforcement of Article 101, without imposing additional burdens on enforcement authorities.

Consumers: 

The initiative is not expected to have direct practical implications for consumers, as the TTBER and Guidelines do not apply to them and are not used by them. Indirectly, however, consumers would benefit from the initiative, as clearer and more effective rules facilitate the use of technology transfer agreements, thereby promoting the dissemination of technology and incentivising R&D. This can in turn be expected to lead to increased innovation, which can translate into better quality and more varied products and lower prices.

2.Summary of costs and benefits

(*) Net administrative burdens = INs – OUTs;

(**) Adjustment costs falling under the scope of the OIOO approach are the same as reported in Table 2 above. Non-annualised values;

(***) Total administrative burdens = Net administrative burdens for businesses + net administrative burdens for citizens.

3.Relevant sustainable development goals

Annex 4: Analytical methods

This annex provides an overview of the methods used in this impact assessment report. The analysis combines the evidence described throughout the report and listed in Section 4 of Annex 1 and Annex 2. The assessment mainly relies on qualitative and multi-criteria analysis.

1.The assessment of impacts

The assessment of the impacts of the policy options was based primarily on qualitative analysis, as robust quantitative data was scarce. Evidence from the various sources was triangulated where possible.

The Evaluation Support Study had already highlighted significant challenges in obtaining reliable quantitative data (for instance, on the magnitude of the market practices concerned), and similar constraints were encountered in the impact assessment phase.

Impacts on competition were assessed mainly on the basis of insights from economic literature on licensing and technology markets, feedback from stakeholders and evidence from the evaluation and the Expert Report on Data Licensing. The analysis considered whether and to what extent each option would promote the use of pro-competitive agreements, either through the application of the block exemption or through the provision of appropriate guidance.

Impacts on businesses were examined primarily by considering the capability of the policy options to reduce businesses’ compliance assessment costs. For this purpose, qualitative evidence and (limited) quantitative evidence was used, namely compliance assessment cost data provided by stakeholders during the evaluation and the impact assessment phases. To supplement and corroborate this data, additional evidence was gathered at the reality check workshop from businesses familiar with technology transfer agreements (see Annex 2 for more detail). On this basis, the impact assessment report provides – where possible – indicative estimates of the impacts on compliance assessment costs.

Impacts on innovation and competitiveness were assessed by analysing the possible effects of the agreements covered by each policy option on these two parameters. This assessment relies primarily on economic studies on technology licensing and stakeholder feedback.

2.Multi-criteria analysis model

In line with the Better Regulation Guidelines, a multi-criteria analysis (MCA) was carried out to assess the policy options. An MCA enables the comparison of policy options against several different independent criteria. The impacts were assessed primarily qualitatively and expressed as a comparison with the baseline scenario.

Three assessment criteria were applied and the following questions were answered for each policy option:

·Effectiveness: the extent to which each option is expected to meet the specific objective for each problem identified, namely reducing the complexity faced by businesses when they apply the TTBER’s market share thresholds for technology markets (Problem 1) and facilitating the competition law assessment of data licensing agreements and LNGs under Article 101 TFEU (Problems 2 and 3), as well as the general objective of ensuring the effective protection of competition.

·Efficiency: comparison of the expected costs and benefits for stakeholders.

·Coherence: the extent to which the initiative is coherent with other Commission rules and guidance on the application of Article 101 TFEU, the Commission’s strategy in relation to data 313 and the primary legislation in this area, as well as other relevant Union legislation.

This assessment was carried out based on the following scoring system, and the scores captured the performance of each policy option on the different assessment criteria:

·− represented a downgrade as compared to the baseline;

·+ represented an improvement as compared to the baseline;

·0 represented no change as compared to the baseline.

Annex 5: Competitiveness check

1.Overview of impacts on competitiveness 

2.Synthetic assessment 

Costs and price competitiveness: The initiative is expected to improve cost and price competitiveness by making it easier for businesses to assess the compliance of their technology transfer agreements, data licensing agreements and Licensing Negotiation Groups (LNGs) with Article 101 TFEU, thereby lowering compliance assessment costs. By simplifying the application of the TTBER and providing guidance on other technology-related agreements, the initiative helps reduce legal uncertainty for businesses. This greater legal certainty makes it easier for businesses to conclude licensing agreements that facilitate access to technology. More efficient technology licensing can, in turn, reduce production costs for licensees and support competitive pricing in downstream markets.

International competitiveness: The initiative is expected to have a limited but overall positive effect on international competitiveness. Increased legal certainty may increase the attractiveness of the EU, particularly for undertakings that require predictable competition-law compliance when doing business across multiple jurisdictions. While the TTBER and Guidelines are neutral regarding the nationality of the parties, greater legal certainty may indirectly strengthen the competitive position of EU businesses.

Capacity to innovate: The initiative is expected to support undertakings’ capacity to innovate. By encouraging licensing of technology rights, the initiative may improve licensors’ ability to recoup R&D investments and enable licensees to develop or improve upon existing technologies. These dynamics contribute to cumulative innovation, particularly in sectors where follow-on innovation relies on access to upstream technologies. Similar considerations apply to data licensing.

SME competitiveness: The initiative is expected to have a positive impact on SME competitiveness by reducing the costs for businesses of assessing compliance with Article 101 TFEU. As SMEs typically have more limited legal and economic resources (than larger companies), they are expected to particularly benefit from increased legal certainty and clearer rules.

3.Competitive assessment of the most affected sectors

The present initiative is not sector-specific. That said, it is likely to have a greater impact in IP and data-intensive sectors, in which technology licensing is more common. These include telecommunications, electronics, pharmaceuticals, automotive and other digital sectors.

The clarifications concerning the application of market share thresholds in technology markets, as well as the guidance relating to data licensing and LNGs are expected to reduce legal uncertainty and help businesses self-assess their agreements under Article 101 TFEU. By lowering complexity and improving legal certainty, the initiative may support smoother technology licensing practices and contribute to a more effective diffusion of innovation.

While the precise magnitude of these effects will depend on market conditions and businesses’ licensing behaviour, clearer rules can be expected to create a more favourable environment for technology uptake, and in turn competitiveness and innovation.

Annex 6: SME check

Overview of impacts on SMEs

Additional information

The impacts of the initiative on SMEs are described in Sections 3 and 4 of this Annex and in Sections 2.3 (compliance assessment costs and influencing business strategies), 6.1.2 (compliance assessment costs), 6.1.3 (competitiveness), 6.2.2 (compliance assessment costs), 6.2.3 (competitiveness), 6.3.1 (competition on the market), 6.3.2 (compliance assessment costs) and 6.3.3 (competitiveness) of this report.

Replies of SMEs and mid-caps to the survey conducted at the reality check workshop

As explained in Annex 2 above, participants in the reality check workshop were surveyed regarding the time and resources that they incur to assess the compliance of their technology transfer agreements with EU competition law.

Of the 24 respondents to the survey question about business categories 325 , 9 respondents (37%) categorised themselves as SMEs (3 micro SMEs, 2 small SMEs, 2 medium-sized SMEs and 2 respondents categorised themselves as small mid-caps (see Figure 1 below) 326 . 

Figure 1: Respondents by size (SMEs and mid-caps)

Among SMEs, 1 respondent did not sign any agreements, 3 respondents signed between 1 and 10 licensing agreements per year on average, 2 respondents signed between 11 and 20 licensing agreements per year on average and 1 respondent signed more than 100 agreements (see Figure 2 below).

Figure 2: On average, how many technology licensing agreements does your organisation sign or advise on per year?

Concerning the time and resources spent on assessing the compliance of technology licensing agreements with EU competition law (average cost per agreement), 3 of SMEs spent more than 5 person-days, 2 SMEs spent between 3 and 5 person-days and 1 respondent less than 1 person-day. 3 SMEs replied that the question was not applicable (see Figure 3 below).

Figure 3: How much time and resources does your organisation spend on assessing the compliance of licensing agreements with EU competition law (average cost per agreement)?

(1)

     https://op.europa.eu/en/publication-detail/-/publication/8e7134ee-62aa-11ee-9220-01aa75ed71a1/language-en

(2)

     https://competition-policy.ec.europa.eu/document/download/2adab2d0-2cda-4d48-8aa5-8381ac058eb9_en?filename=KD0124006enn_study_evaluation_of_the_technology_transfer_block_exemption_regulation.pdf

(3)

     https://competition-policy.ec.europa.eu/document/download/9eff6170-627c-4d31-81f8-9d2317f41ea0_en?filename=kd0125011enn_TTBER_study.pdf

(4)

     See Commission Recommendation of 6 May 2003 concerning the definition of micro, small and medium-sized enterprises, OJ L 124, 20.5.2003, pp. 36-41.

(5)

     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, 28.3.2014, p. 17.

(6)

     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, 28.03.2014, p. 3.

(7)

     See OECD, Licensing of IP Rights and Competition Law. Background Note by the Secretariat, 2019, pp. 10-12, available at https://www.oecd.org/content/dam/oecd/en/publications/reports/2019/04/licensing-of-ip-rights-and-competition-law_20595b8f/6a74221e-en.pdf.

(8)

   World Intellectual Property Organisation World Intellectual Property Indicators 2025, Geneva: WIPO, p. 10 (Figure 1.2), available at https://www.wipo.int/edocs/pubdocs/en/wipo-pub-941-17-2025-en-world-intellectual-property-indicators-2025.pdf . 

(9)

     See, for example, European Research Council, Use of patents: empirical evidence from a survey of grantees of the European Research Council (ERC), 2024, pp. 16 et seq., available at https://erc.europa.eu/sites/default/files/2025-02/patents-empirical-evidence-survey-grantees.pdf . 

(10)

     See the Evaluation Report, p. 16 and the Evaluation Support Study, p. 165. The lack of statistics on the number of technology licensing agreements and the businesses that use them is a long-standing issue. The impact assessment report on the 2014 revision of the TTBER (pp. 6-9) also highlighted the lack of comprehensive data on such agreements, and noted that, following the modernisation of the EU’s antitrust rules in 2004, businesses can no longer notify restrictive agreements to the Commission for negative clearance or individual exemption decisions. The Evaluation Support Study (p. 110) also noted data limitations for related agreements, such as technology pools and licensing negotiation groups.

(11)

     See Gambardella, A., Giuri, P. and Luzzi, A., ‘The market for patents in Europe’, Research Policy, 36, 8, 2007, pp. 1174-1175 (analysing a sample of around 7000 patents).

(12)

     See Torrisi, S., Gambardella, A., Giuri, P., Harhoff, D., Hoisl, K. and Mariani, M., ‘Used, blocking and sleeping patents: Empirical evidence from a large-scale inventor survey’, Research Policy, 45, 7, 2016, p. 1379 (analysing a sample of around 8000 patents).

(13)

     See Pluvia Zuniga, M. and Guellec, D., Who Licenses out Patents and Why? Lessons from a Business Survey, STI WORKING PAPER 2009/5, 2009, p. 12, available at https://www.oecd.org/en/publications/who-licenses-out-patents-and-why_224447241101.html . More recent research surveys show for instance that only 2% of Spanish firms licensed in technology in the period between 2005 and 2013: see Mendi, P., Moner-Colonques, R. and Sempere-Monerris, J., ‘Cooperation for innovation and technology licensing: Empirical evidence from Spain’, Technological Forecasting and Social Change, 154, May 2020, pp. 119976 et seq.

(14)

     See the Evaluation Support Study, pp. 166 and 173; Anand, B.N. and Khanna, T., ‘The Structure of Licensing Contracts’, The Journal of Industrial Economics, 48(1), 2000, p. 112; Kankanhalli, G., and Kwan, A., ‘Bargaining power in the market for intellectual property: Evidence from licensing contract terms’, Journal of Empirical Legal Studies, 21(1), March 2024, pp. 124 and 127. Notwithstanding their methodological limitations, recent industry surveys provide general indications regarding the volume of deals in the sector. See, for instance, EY, Pharma Licensing of the Future, 2023, p. 5, available at https://www.ey.com/content/dam/ey-unified-site/ey-com/en-gl/insights/life-sciences/documents/ey-gl-pharma-licensing-of-the-future-digital-12-2024.pdf (showing an average of approximately 680 licensing deals per year over the period 2017-2022); and Brown, A., Cairns, E. and Elmhirst, E., Pharma, Biotech and Medtech 2019 in Review, Evaluate Ltd., 2020, p. 16, available at  https://www.medicpresents.com/medicfiles/419f_4877evaluatevantagepharmamedtech2019reviewv2.pdf (showing an average of approximately 150 licensing deals per year over the period 2015-2019). Indications regarding the value of licensing deals in the pharmaceutical sector are provided, inter alia, in Q4 2025 Biopharma Licensing and Venture Report, JP Morgan Chase & Co., 2026, p. 7, available at https://www.jpmorgan.com/content/dam/jpmorgan/documents/cb/insights/outlook/jpm-biopharma-deck-q4-2025.pdf .

(15)

     See, for example, the PATLICE Survey - Survey on patent licensing activities by patenting firms, Publications Office of the European Union, 2013, pp. 24-25. These results are consistent with anecdotal evidence on licensing deals (see, for example, Roche agrees biggest-ever obesity drug deal, Financial Times, 12 March 2025, available at www.ft.com and Theranexus and Exeltis (Insud Pharma) announce licensing agreement to commercialise Theranexus TX01 for two rare neurological disorders, 17 December 2024, available at https://live.euronext.com/en/products/equities/company-news/2024-12-17-theranexus-and-exeltis-insud-pharma-announce-licensing). However, aggregate data on the monetary value of the EU licensing market tend not to distinguish between inter-group and intra-group licensing. As economic studies explain, intra-group licensing represents a very significant portion of licensing deals: see Lallement, R., ‘Marchés de la technologie et droits de propriété intellectuelle’, in Guellec, D., Madiès, T. and Prager, J., Les marchés de brevets dans l’économie de la connaissance, Conseil d’analyse économique, 2010, p. 147 (estimating that around 90% of licensing deals in the 1990s in France and Germany were intra-group). Intra-group licensing, however, generally does not fall within the scope of Article 101 TFEU or the TTBER.

(16)

     See, for example, OECD, Licensing of IP Rights and Competition Law, 2019, p. 13, available at https://www.oecd.org/content/dam/oecd/en/publications/reports/2019/04/licensing-of-ip-rights-and-competition-law_20595b8f/6a74221e-en.pdf

(17)

   Transforma Insights forecasts that the number of IoT connected devices will grow from 13 billion in 2022 to 30 billion in 2030 (retrieved from Statista: https://www.statista.com/statistics/1194677/iot-connected-devices-regionally/ ) and that the number of IoT devices connected via cellular technology will grow from 1.7 billion in 2022 to 5.4 billion in 2030 (https://transformainsights.com/research/forecast/highlights).

(18)

     See the Evaluation Support Study, Section 3.2.

(19)

     See, for example, the Evaluation Report, p. 21.

(20)

     See, for example, European Commission, Foresight Report 2025 – Resilience 2.0: Empowering the EU to Thrive amid Turbulence and Uncertainty, Publications Office of the European Union, 2025, p. 13, available at:  https://commission.europa.eu/strategy-and-policy/strategic-foresight/2025-strategic-foresight-report_en .

(21)

     See OECD, Enhancing Access to and Sharing of Data: Reconciling Risks and Benefits for Data Reuse across Societies, OECD Publishing, Paris, 2019, p. 11, available at https://doi.org/10.1787/276aaca8-en.

(22)

     See European Commission, Impact Assessment Report, Proposal for a Regulation of the European Parliament and of the Council on European data governance (Data Governance Act), COM(2020) 767 final, 2020, p. 9, available at https://digital-strategy.ec.europa.eu/en/library/impact-assessment-report-and-support-study-accompanying-proposal-regulation-data-governance.

(23)

     See also the Report on the future of European competitiveness produced by Mario Draghi, Part B, In-depth analysis and recommendations, 2024, p. 298, which states that “stronger competition generally not only delivers lower prices, but also tends to stimulate greater productivity, investment, and innovation”. The report is available at: https://commission.europa.eu/topics/competitiveness/draghi-report_en  

(24)

     See DG Competition, Protecting competition in a changing world - Evidence on the evolution of competition in the EU during the past 25 years, 2024, pp. 15 and 143, available at:  https://competition-policy.ec.europa.eu/system/files/2024-06/KD0924494enn_Protecting_competition_in_a_changing_world_staff_report_2024.pdf (showing for instance that productivity growth is greater in industries that face stronger competition).

(25)

     See Protecting competition in a changing world - Evidence on the evolution of competition in the EU during the past 25 years, p. 13, mentioned at footnote 24. 

(26)

     Report by the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Report on Competition Policy 2024, COM(2025) 181 final, 2025, p. 29, available at https://op.europa.eu/en/publication-detail/-/publication/38f17697-21d3-11f0-92ec-01aa75ed71a1/language-en. The EU national competition authorities share competence with the Commission to apply Articles 101 and 102 TFEU.

(27)

     The report estimates these price effects by comparing observed market outcomes with counterfactual scenarios in which no intervention would have taken place. The estimation focuses on the concept of “direct customer savings” a methodology inspired by guidance developed by OECD.  Under this approach, direct customer savings from a given intervention equal the product of estimates of (1) the price increase avoided as a result of the intervention, (2) the size of the affected market(s) or turnover, and (3) the expected duration of the price effect.

(28)

     The other conditions are that the agreement must (i) contribute to improving the production or distribution of goods or to promoting technical or economic progress; (ii) it must allow consumers a fair share of the resulting benefits; and (iii) it must not impose restrictions that are not indispensable to the attainment of the afore-mentioned objectives. See also the Communication from the Commission, Notice - Guidelines on the application of Article 81(3) of the Treaty, OJ C 101, 27.4.2004, p. 97, paragraph 9.

(29)

     Since the modernisation of the EU antitrust rules in 2003, businesses can no longer notify restrictive agreements to the Commission to obtain a comfort letter or individual exemption decision. They must self-assess the compliance of their agreements with Article 101 TFEU.

(30)

     Regulation No 19/65/EEC of 2 March of the Council on application of Article 85(3) of the Treaty to certain categories of agreements and concerted practices, OJ 36, 6.3.1965, p. 35. 

(31)

     More precisely, the TTBER covers agreements for the assignment of technology rights if the agreement provides for part of the risk of exploiting the technology to remain with the assignor.

(32)

     Patents, utility models, design rights, software copyrights, semi-conductor topographies, supplementary protection certificates for medicines and plant breeder’s certificates (TTBER, Article 1(1)(b)).

(33)

     A package of practical information resulting from experience and testing that is useful for the production of goods or services. The know-how must be secret, substantial and identified (TTBER, Article 1(1)(i)).

(34)

     The market share thresholds are intended to ensure that the block exemption does not apply to agreements between undertakings that hold market power.

(35)

     Hardcore restrictions are serious restrictions of competition that generally cause harm to consumers, such as price fixing or output restrictions.

(36)

     For example, because the TTBER’s market share thresholds are not met.

(37)

     See Sections 4.3 and 4.4 of the Guidelines.

(38)

     See Communication from the Commission to the European Parliament, the European Council, the Council, the European Economic and Social Committee and the Committee of Regions, A Competitiveness Compass for the EU, 29 January 2025, COM(2025) 30 final, pp. 6 and 7.

(39)

     See A Competitiveness Compass for the EU, mentioned at footnote 38.

(40)

     See the webpage on the “European Innovation Act”: https://research-and-innovation.ec.europa.eu/strategy/support-policy-making/shaping-eu-research-and-innovation-policy/european-innovation-act_en.

(41)

     See the webpage on “Cloud Computing”: https://digital-strategy.ec.europa.eu/en/policies/cloud-computing. 

(42)

     See the webpage on “Quantum”: https://digital-strategy.ec.europa.eu/en/policies/quantum.

(43)

     See the webpage on the “European Research Area (ERA) Act”: https://research-and-innovation.ec.europa.eu/strategy/support-policy-making/shaping-eu-research-and-innovation-policy/european-research-area-era-act_en.

(44)

     See the webpage “Commission seeks views on future of European Standardisation”: https://single-market-economy.ec.europa.eu/news/commission-seeks-views-future-european-standardisation-2025-09-24_en.

(45)

     A European strategy for data, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions, COM(2020) 66, 19.2.2020.

(46)

     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, 2023/2854.

(47)

See Proposal for a Regulation of the European Parliament and of the Council amending Regulations (EU) 2016/679, (EU) 2018/1724, (EU) 2018/1725, (EU) 2023/2854 and Directives 2002/58/EC, (EU) 2022/2555 and (EU) 2022/2557 as regards the simplification of the digital legislative framework, and repealing Regulations (EU) 2018/1807, (EU) 2019/1150, (EU) 2022/868, and Directive (EU) 2019/1024 (Digital Omnibus), COM(2025) 837.

(48)

     See Communication from the Commission to the European parliament and the Council – Data Union Strategy. Unlocking data for AI, 19.11.2025 COM(2025) 835.

(49)

     See President Ursula von der Leyen’s Political guidelines for the next European Commission 2024-2029, p. 10. 

(50)

     https://www.justice.gov/atr/guidelines-and-policy-statements-0

(51)

     https://www.chinaiplawupdate.com/2024/11/chinas-state-administration-for-market-regulation-releases-anti-monopoly-guidelines-in-the-field-of-standard-essential-patents/

(52)

     See Section 5.1 of the Evaluation Report (Conclusions).

(53)

     See the Evaluation Report, p. 42.

(54)

     The contract products are the goods or services that are produced using the technology rights licensed under the technology transfer agreement.

(55)

     Thus, where a party to the agreement is active as a licensor of technology that is used in products sold on the relevant product market, it is necessary to aggregate the sales of all products that incorporate that party’s technology (the party’s own sales and the sales of its licensees) and then calculate their share of the total sales in that product market.

(56)

     See paragraph 157 of the Guidelines.

(57)

     See, for example, the Evaluation Report, pp. 28-31 and the Evaluation Support Study, pp. 66-67, 83-88.

(58)

     For example, some stakeholders noted that when technologies have long development timelines and licensing occurs at an early stage, the parties do not have data on the future market share of the technology. However, in that scenario, it follows from paragraph 90 of the Guidelines and Article 8(e) of the TTBER that the agreement can benefit from the block exemption, provided that it does not contain hardcore restrictions. See, for example, the Evaluation Support Study, p. 85.

(59)

     See the Evaluation Report, p. 42. The absence of guidance on data licensing is not surprising, since data licensing is a relatively new market development which was not significant in 2014. See the Evaluation Report, Section 3.2.

(60)

     See the Evaluation Report, p. 42.

(61)

     See the Expert Report on Data Licensing, p. 12.

(62)

     See Graux, H., What is data ownership, and does it still matter under EU data law? An exploration of traditional concepts of data ownership, and of the expected impact of the Data Act, Publications Office of the European Union, 2024, pp. 6-7, available at data.europa.eu. Where businesses share or license data, they exercise control over the data through a variety of intellectual property rights (in particular, copyright), sui generis rights (in particular, the database sui generis right) and a mix of other types of rights or contractual provisions; see the Expert Report on Data Licensing, pp. 19 et seq. and p. 24.

(63)

       See Picht, P.G., Caught in the Acts: Framing Mandatory Data Access Transactions under the Data Act, further EU Digital Regulation Acts, and Competition Law, Max Planck Institute for Innovation and Competition Research Paper No. 22-12, 2022, p. 12, available at ssrn.com (explaining that in relation to the competition law assessment there is “an even greater lack of ready to use-solutions for the data licensing context”).

(64)

     See the Evaluation Support Study, pp. 44 and 65.    

(65)

     See the Evaluation Support Study, pp. 65-66, which discusses how various forms of data transfer fall within the scope of the TTBER and the Guidelines. See also, for example, the response of a business association to the evaluation public consultation questionnaire, which stated “Under the current TTBER is doubtful that raw data are included in the definition of know how adopted by the TTBER”.

(66)

     See the Evaluation Report, p. 42. See also Evaluation Support Study, p. 90.

(67)

     See the Evaluation Report, p. 42.

(68)

     In the public consultation on the draft revised texts, some stakeholders (businesses that implement technology) specified that LNGs provide one additional means for technology licensors and licensees to negotiate licensing terms, i.e. they are not intended to completely replace bilateral negotiations or licensing through pools or licensing platforms.

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     Technology pools allow a similar reduction in transaction costs: implementers who take a licence from a pool gain access to the rights of multiple technology owners, without the need to negotiate with each of them individually.

(70)

     See Group of Experts on Licensing and Valuation of Standard Essential Patents, Contribution to the Debate on SEPs, 2021, pp. 168 et seq., available at: https://ec.europa.eu/docsroom/documents/45217 . .

(71)

   Hold-out means a refusal or unreasonable delay by a technology implementer to take a licence of the technology.

(72)

     See Barnett, J.M., The economic case against Licensing Negotiation Groups in the Internet of Things, 4iP Council, 2021, available at https://www.4ipcouncil.com/research/economic-case-against-licensing-negotiation-groups-internet-things, which states: “In the short term, LNGs would simply redistribute economic value from innovators to implementers in the technology supply chain without necessarily passing on cost savings to consumers. In the medium to longer term, LNGs would pose a risk to the standard-development and licensing-based monetization strategies that have supported the wireless communications industry’s iterative model of technology development.”

(73)

     This was confirmed by the replies to the impact assessment public consultation questionnaire. When asked whether the guidance on joint purchasing agreements in Chapter 4 of the Horizontal Guidelines provides an appropriate analytical framework for assessing LNGs, the majority of respondents answered in the negative.

(74)

     Pursuant to the Informal Guidance Notice, the Commission may provide informal guidance to businesses in cases which present novel or unresolved questions for the application of Articles 101 or 102 TFEU; see Commission Notice on informal guidance relating to novel or unresolved questions concerning Articles 101 and 102 of the Treaty on the Functioning of the European Union that arise in individual cases (guidance letters), OJ C 381, 4.10.22, pp. 9-13.

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     See the Commission press release of 9 July 2025 on the issuance of an informal guidance letter relating to the creation of the Automotive Licensing Negotiation Group: https://ec.europa.eu/commission/presscorner/detail/mt/ip_25_1768 . 

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     See paragraph 32 of the ALNG informal guidance letter: https://ec.europa.eu/competition/antitrust/cases1/202536/AT_40979_104.pdf.

(77)

     NCAs and national courts are not legally bound by Commission guidelines for the application of Article 101 TFEU, however they typically take such guidelines into account in their enforcement practice.

(78)

     See, for example, the websites of Avanci ( https://www.avanci.com/ ) and Sisvel (https://www.sisvel.com).

(79)

     See Section 5.1 of the Evaluation Report (Conclusions).

(80)

     In particular, the evaluation found that the TTBER and Guidelines do not reflect recent case law and decisional practice in relation to: (i) the concept of potential competitor; (ii) patent litigation settlement agreements, in particular pay-for-delay agreements, and (iii) the approach towards (non-software) copyright licences. The evaluation also found that, unlike the recently revised block exemption regulations for horizontal agreements and vertical agreements, the TTBER does not contain definitions of ‘active’ and ‘passive’ sales, which are concepts that are relevant for the application of the TTBER’s list of hardcore restrictions.

(81)

     In particular, the objective of providing businesses with simpler, clearer and up-to-date rules and guidance that can help them to assess the compliance of their technology-related agreements with Article 101 TFEU. The objectives of the TTBER and Guidelines are explained in more detail in Section 2.1.3 of the Evaluation Report and in Section 4 below.

(82)

     See, for example, the Evaluation Report, pp. 28-31 and 35-36; see also pages 84-86 of the Evaluation Support Study, which state that the practical difficulties encountered in relation to the TTBER’s market share thresholds affect the TTBER’s relevance and effectiveness (the latter in the sense of encouraging pro-competitive licensing).

(83)

     See, for example, pages 27 and 35-36 of the Evaluation Report and page 309 of the Evaluation Support Study.

(84)

   See, for example, Evaluation Report pp. 28-29, 40-42.

(85)

     The evaluation showed that these costs are challenging for stakeholders to quantify, for instance because they assess the compliance of their activities with the law in general, without distinguishing between competition law and other applicable legislation. See the Evaluation Support Study, pp. 91 and 110. The evaluation attempted to gather data through stakeholder interviews, however participation was relatively limited and the interviews yielded only very general information. See the Evaluation Report, p. 36 and the Evaluation Support Study, pp. 19–25. To attempt to overcome these challenges in the impact assessment, participants in the reality check workshop were asked a series of simple questions about their compliance assessment costs. Although participation in this survey was relatively limited, it did provide some indications of the magnitude of these costs; see Section 2.3 of Annex 2. Similar quantification challenges were encountered in the recent revisions of the block exemption regulations and guidelines for vertical agreements and horizontal agreements; see, for example, the Commission Staff Working Document, Evaluation of the Vertical Block Exemption Regulation, SWD(2020) 172 final, p. 27, available at https://op.europa.eu/en/publication-detail/-/publication/04939c28-19f0-11eb-b57e-01aa75ed71a1/language-en.

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     See Section 2.3 of Annex 2.

(87)

     See the Evaluation Support Study, pp. 91, 225-227. This order of magnitude is consistent with the results of the survey conducted at the reality check workshop (see Section 2.3 of Annex 2). According to that survey, businesses spend on average 3.04 days per licensing agreement to assess compliance with competition law.

(88)

     See Section 2.3 of Annex 2.

(89)

     See, for example, Broulik, J., ‘Predictability: a mistreated virtue of competition law’, Journal of Antitrust Enforcement, 12, 2024, pp. 363.

(90)

     Commission SWD, Evaluation of the Vertical Block Exemption Regulation, SWD(2020) 172 final, p. 61, available at https://op.europa.eu/en/publication-detail/-/publication/04939c28-19f0-11eb-b57e-01aa75ed71a1/language-en.

(91)

     See, for example, Broulik, J., ‘Predictability: a mistreated virtue of competition law’, pp. 364 et seq., mentioned at footnote 89.

(92)

     See, for example, the Evaluation Support Study, pp. 28, 192.

(93)

     See the Evaluation Support Study, p. 29.

(94)

     This extrapolation is based on the following assumptions and data: 1. The empirical surveys by Gambardella, A., et al., and by Torrisi, S., et al., (see footnotes 11 and 12 of this Report) suggest that between 6% and 11% of EPO patents are licensed; 2. EPO data indicate that approximately 110,000 patents were granted in 2024 (see EPO, Patent Index 2024. Statistics at a glance, March 2025, p. 8, available at epo.org); 3). Empirical literature shows that licensing agreements often bundle multiple patents, with some agreements covering dozens of patents, and that patents may be licensed to more than one licensee. As data on the average number of patents per licensing agreement and the average number of licensees per patent are not available, the extrapolation relies on two assumptions: each licensing agreement contains between 2 and 4 patents, and each patent is licensed to 1 licensee. These assumptions are intended to reflect predominantly bilateral licensing and to exclude patent pool and other multilateral licensing schemes (which do not fall within the scope of the TTBER). Based on these assumptions, the range of estimated licensing agreements is calculated as follows: Lower bound: (number of EPO patents granted in 2024 × 6 %) ÷ 4 × 1; Upper bound: (number of EPO patents granted in 2024 × 11 %) ÷ 2 × 1.

(95)

     This figure does not capture the licensing of technology rights other than patents (for example, know-how). It should be interpreted with caution for additional reasons. First, it may overestimate the number of agreements potentially falling within the scope of the TTBER, as it may include licensing agreements for purposes other than the production of contract products, as well as licensing agreements entered into by undertakings which, due to their market shares, would clearly fall outside the scope of the TTBER. Second, the number of licensing agreement concerning EPO patents does not precisely correspond to the number of licensing agreements falling within the scope of Article 101 TFEU. For example, even an agreement concerning a patent registered exclusively in the patent office of a single Member State can fall within the scope of Article 101. However, the existence of an EPO patent can be used as a proxy for licensing agreements that may have effects on EU markets and, for the purpose of our extrapolation, is therefore used to estimate the number of licensing agreements potentially falling within the scope of the TTBER. 

(96)

     For instance, the two empirical surveys on which the extrapolation is based (i.e. those by Gambardella, A., et al., and by Torrisi, S., et al.) concern datasets or agreements from more than ten years ago and therefore do not capture potential changes in the technology licensing market since then, such as a possible increase in sectoral vertical integration. 

(97)

     As mentioned at the beginning of this Section, stakeholders indicated that assessing compliance with the TTBER typically requires between 0.25 to 6 full days per agreement, resulting in an average of 3.125 days. The replies to the survey conducted at the reality check workshop showed that stakeholders spend, on average, around 21% of their total compliance assessment costs on the assessment required for applying the TTBER’s market share thresholds. See Section 2.3 of Annex 2. As the evaluation showed that businesses use both internal and external resources to assess whether their agreements meet the conditions of the TTBER, this report uses the lower bound of hourly fees for lawyer services (i.e. EUR 150) to estimate the costs associated with an average of 3.125 working days per agreement. This value is consistent with that used in other Commission impact assessment reports. On that basis, the total cost of assessing compliance with the TTBER is estimated at approximately EUR 3,750 per licensing agreement. The cost of applying the market share thresholds is therefore estimated at approximately EUR 787.5 per licensing agreement. 

(98)

     For more detail, see Section 2.1 of Annex 2.

(99)

     For more detail, see Section 2.1 of Annex 2. 

(100)

     See the impact assessment report on the previous revision of the TTBER, pp. 8-9 and the PATLICE Survey - Survey on patent licensing activities by patenting firms, Publications Office of the European Union, 2013.

(101)

     This was, for example, reported by a stakeholder in response to the impact assessment public questionnaire.

(102)

     Data licensing agreements are private agreements between undertakings that are not generally published or reported. Consequently, it has not been possible to obtain reliable estimates of the numbers of such agreements. For example, some sources report fewer than 200 known data licensing agreements (see https://www.neudata.co/blog/ai-data-licensing-market-analysis). However, this number likely represents a small fraction of the total population of data licensing agreements. To arrive at a more realistic estimate, it is therefore useful to analyse more general data about the players active in the data market. The type of companies operating in this market are the data supplier companies, namely companies that have as their main activity the production and delivery of digital data-related products, services, and technologies. In 2024, there were an estimated 266,173 data supplier companies in the Union and this number was expected to grow to 280,173 in 2025. See La Croce, C. et al., First Report on Facts and Figures, The European Data Market Study 2024-2026, CNECT/LUX/2023/OP/0043 (2025), p. 77, available at https://digital-strategy.ec.europa.eu/en/library/european-data-market-study-2024-2026. However, it is likely that only a fraction of these companies will license data through bilateral licences entered into for the purpose of production (i.e. that could possibly benefit from the TTBER safe harbour).  

(103)

While the data on number of full-time days per agreement used for the purpose of this calculation relate to technology transfer agreements, it has been used by analogy for data licensing agreements.

(104)

Based on the evaluation and other data collection activities, we know that (i) assessing the compliance of an agreement with the TTBER takes on average 3.125 full-time days; (ii) the ability to use the TTBER and the Guidelines to assess the compliance of an agreement with Article 101 TFEU reduces those compliance assessment costs by an average of 33%. Consequently, the costs of assessing the compliance of an agreement without the TTBER and Guidelines can be estimated at 4.66 full-time days.

(105)

The cost per agreement has been calculated by multiplying the number of 4.66 full-time days by an average cost per hour of EUR 150 (the lower bound of hourly fees for lawyer services; see footnote 97 for more details).

(106)

     Available at: https://digital-strategy.ec.europa.eu/en/library/data-union-strategy-unlocking-data-ai.

(107)

     There is currently no case law of the Union Courts or Commission decisions on LNGs. Businesses may refer to the assessment contained in the informal guidance letter issued by the Commission in relation to the ALNG, however the guidance in that letter is expressly limited to the specific facts and market context of the ALNG itself.

(108)

     According to the Commission’s Impact Assessment Report accompanying the Proposal for a Regulation on standard essential patents, there were around 3,800 potential SEP implementers in the EU in 2022, of which 84% were SMEs. Approximately 230 EU-based firms conclude new SEP licence agreements per year, including approximately 80 SMEs; see Commission Staff Working Document SWD/2023/124 final, pp. 78-79, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52023SC0124.

(109)

     See Section 2.1 (Problem 3) above.

(110)

     See, for example, the Evaluation Support Study, pp. 85-88 and 285-286.

(111)

     The evaluation and the literature indicate that early licensing is common in some industrial sectors and among certain actors, such as public research organisations. See, for example, the Evaluation Support Study, pp. 85, 90 and 203 (which mention the agricultural and pharmaceutical sectors); Song, S. and Lee, J., ‘Licensing early-versus late-stage technologies: The licensee perspective’, Technology in Society 72 (2023) 102199, p. 5; Spiegel, Y., Licensing interim R&D knowledge, CSIO Working Paper no. 88, Northwestern University, 2007, p. 2, available at https://sites.northwestern.edu/csiobackup/category/working-papers/; Elfenbein, D.W., ‘Publications, patents and the market for university inventions’, Journal of Economic, Behaviour and Organization, 63, 2007, pp. 692-693 (concerning early licensing of university-generated inventions). As noted in the Introduction, there is little statistical data on the number of licensing agreements, and obtaining reliable quantitative data on early licensing has proved to be equally challenging. 

(112)

     See, for example, Reinganum, J.F., ‘The Timing of Innovation: Research, Development and Diffusion’, in Schmalensee, R. and Willig, R.D., Handbook of Industrial Organization, Volume I, Elsevier Science Publishers B.V., 1989, pp. 893 et seq., emphasising that the timing of the adoption of a technology depends on several factors and may vary significantly across firms and industries.

(113)

     For an overview of the concepts and methodologies used to define markets in which innovation plays a significant role, see, for example, Hausemer, P. et al., Support study accompanying the evaluation of the Commission Notice on the definition of relevant market for the purposes of Community competition law, Final Report, Publications Office of the European Union, 2021.

(114)

     For instance, in a highly dynamic market with limited barriers to entry, a substitutable technology may be developed by another company and compete with the licensed technology.

(115)

     See, for example, judgment of 11 December 2013, Cisco Systems and Messagenet v Commission, T-79/12, EU:T:2013:635, paragraph 69.

(116)

     The literature also highlights the risks arising from high levels of concentration in technology markets (see, for example, Gambardella A., Giuri P., and Luzzi A., ‘The market for patents in Europe’, Research Policy, 36, 8, 2007, pp. 1168).

(117)

     In its merger practice, the Commission has highlighted that certain licensing markets within the agrochemical industry, particularly seed and trait licensing markets, are characterised by stable and high market shares, and that further concentration of these shares could have detrimental effects on competition. For example, in M.5675 – Syngenta/Monsanto’s Sunflower Seed Business (Commission Decision of 17 November 2010, paragraphs 152 et seq.), the Commission noted the consolidation trend among licensors of sunflower varieties and the competition risks arising from further concentration. In that case, the combined market share of the (competing) merging parties would have been between 25% and 45% (paragraph 155). This concentration heightened the risk of negative effects on downstream markets, due, for example, to the parties’ larger market share and their greater ability to raise royalties or impose restrictive conditions. A subsequent decision in the same industry (M.8084 – Bayer/Monsanto, Commission Decision of 21 March 2018) also noted the competitive risks stemming from the combined high market shares of the merging parties in the licensing of cotton varieties. The concentration would have led to a combined market share of 60-80 % in that licensing market (paras. 771 et seq.). The level of combined market shares and the associated competitive concerns were even more significant for certain markets for the licensing of broad acre crop traits (see paras. 903 et seq.). However, other licensing markets are more competitive, and even temporarily high market shares do not automatically create significant competitive concerns. See, for instance, the Commission Decision of 2 June 2023, in M.10783 – EQT Future/AM Fresh/SNFL/IFG, paragraphs 108 et seq., analysing market shares and their evolution in the breeding and licensing of protected seedless table grapes.

(118)

     See, for example, the Commission Decisions mentioned in the footnote above.

(119)

     See DG Competition, Protecting competition in a changing world. Evidence on the evolution of competition in the EU during the past 25 years, Publications Office of the European Union, 2024, pp. 4-10. 

(120)

     See the Evaluation Report, Section 3.2.

(121)

     According to the Expert Report on Data Licensing, paragraph 37, such know-how can, for example, concern best (manufacturing) practices for handling the licensed technology.

(122)

     Expert Report on Data Licensing, Section 4.01.

(123)

     See Evaluation Support Study, p. 31.

(124)

See La Croce, C. et al., First Report on Facts and Figures, The European Data Market Study 2024-2026, CNECT/LUX/2023/OP/0043 (2025).

(125)

     These figures are publicly available at https://www.grandviewresearch.com/industry-analysis/ai-datasets-licensing-academic-research-publishing-market-report (last visited on 01/03/2026).

(126)

     The Evaluation Support Study reported a lack of information on the number and size of LNGs operating in the EEA and attributed this to the fact that LNGs were only starting to emerge and/or do not operate officially as LNGs.

(127)

     See the Evaluation Report, Section 3.1 and the Evaluation Support Study, Section 3.2.

(128)

     See CRA, The global SEP landscape: Estimating royalty flows and out of Germany (2024), pp. 10 and 12, available at https://www.crai.com/insights-events/publications/the-global-sep-landscape-estimating-royalty-flows-in-and-out-of-germany/, which notes that the 4G licences granted by the Avanci platform’s 4G licences covered more than 130 million connected vehicles in 2023 and that the SEP licensing revenue of the seven largest patent pools totalled EUR 1.3 billion in 2022, with the Avanci 4G vehicle pool contributing approximately EUR 488 million.

(129)

The EU’s Internet of Things policy highlights that the number of installed connected devices is set to increase from roughly 40 billion in 2023 to 49 billion by 2026, growing at an annual rate of 7%. See https://digital-strategy.ec.europa.eu/en/policies/internet-things-policy.

(130)

     See, for example, the IoT licensing programmes offered by Sisvel ( https://www.sisvel.com/licensing-programmes/iot/ ) and Avanci ( https://www.avanci.com/ ).

(131)

In 2024, around 76 % of EU internet users used internet-connected devices or systems, illustrating widespread digital connectivity, See Eurostat, Digitalisation in Europe – 2025 edition, available at https://ec.europa.eu/eurostat/web/interactive-publications/digitalisation-2025.

(132)

Although standard-essential patents (“SEPs”) represent only a limited share of all patents in force, they are central in sectors where compliance with technical standards is indispensable for market access. See also page 33 of the SEPs Expert Group Contribution to the Debate on SEPs (2021), pp. 195-196, which notes that the total stock of declared SEPs continues to increase and will likely continue to do so in the foreseeable future, because the number of new patents being registered is currently significantly larger than the number of patents expiring or lapsing.

(133)

     See the Evaluation Report, pp. 33-34. 

(134)

     Businesses that contribute technology rights to a technology standard generally commit to the standard-setting organisation that they will license out their rights on Fair, Reasonable and Non-discriminatory (“FRAND”) terms. However, what constitutes FRAND is often the subject of litigation between technology owners and implementers. See the Evaluation Support Study, Section 3.1. See also the judgment of the Court of Justice of 16 July 2015 in case C-170/13, Huawei v ZTE, ECLI:EU:C:2015:477 and the Horizontal Guidelines, paras. 460-462.

(135)

     See, for example, Nokia signs multi-year patent license agreement with Samsung, Reuters, 15 January 2025, available at www.reuters.com ; Olcott, E., Western companies drive Chinese biotech licensing deal blitz. Financial Times, 26 May 2024, available at www.ft.com.

(136)

     See, for example, Posnett, K., The new markets for AI data, Financial Times, 19 May 2025, available at www.ft.com.

(137)

     The Guidelines do not bind NCAs or national courts. However, NCAs and courts typically take Commission guidelines and notices on the application of Article 101 TFEU into account when they assess the compatibility of agreements with Article 101.

(138)

This is confirmed by the stakeholder feedback in the evaluation: see page 39 of the Evaluation Report.

(139)

     See the Evaluation Report, pp. 39-40 and the Evaluation Support Study, pp. 28-29.

(140)

     See Section 1.3 above for an explanation of the relationship between the TTBER, the Enabling Regulation and Article 101 TFEU.

(141)

Regarding possible options concerning the TTBER’s market share thresholds, stakeholder feedback in the impact assessment phase was relatively limited. Around 20 stakeholders provided input. The only option that was supported by a majority of respondents was to improve the guidance on the application of the TTBER’s market share thresholds and on the 4+ test in the Guidelines. A few stakeholders (including large businesses, one association of lawyers, two business associations and one academic institute) supported the complete removal of the market share thresholds. Among those who did, most argued that applying the thresholds is particularly problematic for technologies at an early stage of uptake and/or that technology markets are generally dynamic, with market shares fluctuating significantly, thereby limiting the risk of market power. On this basis, they criticised the TTBER’s reliance on market shares. Some respondents (including large businesses, one law firm and two research institutes) supported a test based on the existence of a certain number of alternative technologies. Most of these advocated using a threshold of less than four technologies. In this respect, some respondents stated that, particularly at an early stage of technological uptake, it is likely that there will be fewer than four alternative technologies on the market in addition to those controlled by the parties. Some stakeholders (including one business association and one academic) proposed the introduction of a simplified test for technologies that are at an early stage of uptake or at low levels of technological readiness. Other stakeholder contributions mirrored the feedback received in the evaluation (described in Section 2.1 above).

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     See Section 2.1 (Problem 1) of this Report.

(143)

     See, for example, the replies of two major industry associations to the consultation on the proposed revised texts (which incorporated this change), emphasising that “the principle set out in [the] recital of the TTBER is also supported […]. This approach helps to recognise the innovative potential of emerging technologies and avoids penalising business models that rely on intangible assets and high-risk R&D” and that “the clarification in [the] recital [of the TTBER] is an important step […]. It is particularly helpful to specify that the market share on a technology market is “zero” when products are not yet available on the market. This significantly reduces legal uncertainty”.

(144)

     For an explanation of the grace period, see Section 2.1 (Problem 1) above.

(145)

     See for example, Rab, S., ‘New EU Technology Transfer Block Exemption: A Note of Caution’, Journal of European Competition Law & Practice (2014), pp. 436 et seq.

(146)

     See, for example, the replies of two major industry associations to the consultation on the proposed revised texts, emphasising that “Extending the grace period [by one year] provides greater flexibility in assessing structural changes and improves predictability for subsequent antitrust action, allowing for fluctuations in the parties’ market shares following the introduction of new technologies and the need to recover their investments” and that the extension of the grace period by one year positively “takes into account the volatility of young technology markets and […] increases legal certainty”.

(147)

     The literature on the speed of technology adoption shows that the time required for technologies to reach wide market adoption has decreased in recent decades. While it is difficult to pinpoint an exact number of years for adoption across different industries, historical cases indicate that certain technologies (for example, the videocassette recorder) took around 8 years for achieving widespread commercialisation after their introduction. The literature also shows that in some industries technological uptake has substantially accelerated over the past years. See Gross, R., et al., ‘How long does innovation and commercialisation in the energy sectors take? Historical case studies of the timescale from invention to widespread commercialisation in energy supply and end use technology’, Energy Policy, 123, 2018, pp. 628 et seq. (examining the period between market introduction and widespread commercialisation for various technologies); Comin, D. and Hobijn, B., ‘An Exploration of Technology Diffusion’, The American Economic Review, 100, 5, 2010, p. 2049 (explaining the evolution of technology uptake in certain industries).

(148)

This would be the case where the technology generates sales of contract products in the same calendar year the agreement is signed and, in that same year, the sales of the contract products result in the market share thresholds being exceeded. This is because according to Art. 8(e) of the TTBER, the grace period applies for a number of ‘consecutive calendar years’ (three years under Option 1) ‘following the year in which the’ thresholds are exceeded.

(149)

     The policy options for data licensing agreements elicited limited feedback from stakeholders. In response to the impact assessment public consultation, 9 stakeholders responded that at least certain types of data can qualify as know-how (including 5 businesses in the automotive, energy and telecoms sectors; 2 associations, 2 universities/academics), while 4 expressed doubts about this (1 company in the telecoms sector, 2 associations and 1 law firm). Stakeholders interviewed by the external expert for the Evaluation Support Study were also asked to address how data fits the TTBER’s definition of know-how (see page 194 of the Evaluation Support Study). The Expert Report on Data Licensing confirmed that data can qualify as know-how, but also as software copyright or as a patent. As regards the possibility to provide guidance in the TTBER and the Guidelines on data licensing agreements that do not fall within the scope of the TTBER, a majority of respondents in the impact assessment public consultation agreed with that option. In particular, when asked whether providing guidance in the Guidelines on data licensing agreements would provide legal certainty, 8 respondents agreed (3 businesses in the automotive and health technology sectors, 3 associations, 2 academic/research institutions), while 1 (a law firm) disagreed. Lastly, many stakeholders throughout the evaluation and impact assessment phases were in favour of expanding the list of technologies covered by the TTBER to directly cover certain IP or similar rights that are specific to data. However, as explained in Section 5.3 below, that option was discarded.

(150)

     Regardless of the policy option, it should be emphasised that the TTBER and the Guidelines cannot provide guidance on every type of data licensing agreement or for every possible type of restriction contained in such agreements. This applies to competition law guidance in general, but is particularly true for a fast-evolving practice such as data licensing, where there is so far very little enforcement practice. For this reason, the options focus on providing guidance for those data licensing agreements that most closely resemble technology transfer agreements.

(151)

     For example, the data could consist of the method to be used for a production process, such as a new method of chemical synthesis. Such data could constitute know-how within the meaning of the TTBER. The method could also be patentable.

(152)

     Stakeholders were divided on the need to cover additional types of data. Some respondents to the public consultation stated that the licensing of other types of data, such as for example raw data or data not protected by any type of intellectual property, can have significantly different effects on competition compared to the licensing of technologies covered by the TTBER. For example, a business association recognised the difficulties of applying the TTBER framework to all types of data. Another business association agreed that database copyright and the database sui generis right are the only rights in data that are sufficiently clear and specified to be included in the TTBER framework. It has been pointed out that in the absence of significant investments to collect the data, restrictions of competition included in the licensing of such data may be harder to justify under Article 101(3) compared to similar restrictions in technology transfer agreements. Overall, the lack of enforcement experience in this particular field does not allow the Commission to provide specific guidance within the TTBER framework on the application of Article 101 to the licensing of other types of data (namely, those that are less similar to the technology rights covered by the TTBER).

(153)

This guidance would be included in the Guidelines, which bind the Commission in its enforcement practice and are therefore able to provide a good degree of legal certainty to businesses.

(154)

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, 2023/2854.

(155)

     Restrictions ‘by object’ are a category of particularly harmful restrictions of competition, for which it is not necessary to demonstrate actual or potential effects on the market. Price-fixing and market-sharing agreements between competitors are examples of restrictions by object.

(156)

     In the impact assessment public consultation, the proposal to provide guidance on LNGs was supported by technology implementers (businesses and business associations) and opposed by technology owners (businesses and business associations); see Annex 2, Section 2.1 for the results of the consultation.

(157)

     The Commission has provided soft safe harbours for various types of multilateral agreements, with the aim of increasing legal certainty. These include technology pools (see Chapter 4.4 of the Guidelines), joint purchasing agreements, standardisation agreements and sustainability standardisation agreements (see Chapters 4, 7 and 9 respectively of the Horizontal Guidelines). Commission Guidelines bind only the Commission, not the Union Courts, NCAs or national courts, however NCAs and national courts typically take the Commission’s guidelines into account when they assess agreements under Article 101 TFEU.

(158)

See pages 42-43 of the Evaluation Report, which confirms the need for a block exemption regulation for technology transfer agreements, and concludes that the TTBER and Guidelines have overall met their objectives and achieved these objectives in an efficient way.

(159)

     Under the footprint methodology imposed by the TTBER for calculating market shares in technology markets, a technology owner’s market share in the technology market is inferred from the combined market shares of all its licensees in the product market. The removal of the market share thresholds for technology markets would be particularly problematic for agreements between competing technology licensors. For example, let us assume that there are only two technologies to manufacture a certain product. Technology owner A does not itself manufacture the product but licenses its technology to manufacturers of the product. Technology owner B owns the competing technology and licenses it to manufacturers, but also manufactures the product itself and has a market share below 20 % in the product market. Under the current TTBER, these two firms would have a 100% share of the relevant technology market, therefore any technology licensing agreement between them would fall outside the block exemption. If the TTBER’s market share thresholds for technology markets were to be removed, it would be possible for technology owner A to grant a worldwide exclusive licence to technology owner B. This would mean that potential licensees would no longer benefit from competition between the two technology owners for the grant of licences. Technology owner B would be able to increase the price of the technologies. Competition in the relevant technology market would be eliminated, contrary to the conditions of Article 101(3) TFEU.   

(160)

     Only a few stakeholders advocated removing the market share thresholds, based on the arguments set out in Section 5.2.1: one of these stakeholders (a business) acknowledged the risk that such removal could result in block-exempting all agreements entered into by licensors with market power in the technology market, but not in the product market. The Commission’s enforcement experience also shows that technology markets are not always dynamic, particularly when technologies are at an advanced stage of uptake. The risk of block-exempting anti-competitive agreements was also highlighted by other stakeholders in response to the impact assessment public consultation (including two research institutes and one academic). 

(161)

     The results of the evaluation indicate that the policy options would have only a limited impact on NCAs and national courts. The Evaluation Support Study found very limited case law and enforcement practice directly applying the TTBER and Guidelines. The NCAs also confirmed that they have limited experience of applying the TTBER. See, for example, pages 29 and 30 of the Evaluation Support Study.

(162)

     Technology transfer agreements play a role in the Union’s green transition, but the policy options do not relate specifically to technology transfer agreements that pursue sustainability objectives. Moreover, sustainability attracted almost no attention from stakeholders during the evaluation: see the Evaluation Support Study, p. 96.

(163)

     See Section 2.3 above. For example, in the impact assessment public consultation, one of the impact-related questions that elicited the highest number of responses received only 14 replies, including 2 stakeholders who answered “Do not know”. More generally, the Evaluation Support Study (pp. 13–14, 16–18, 30) noted the limited number of recent studies in the field covered by the TTBER and Guidelines; the limited decisional practice and case law in the area, as well as the limited amount of public information on licensing agreements. 

(164)

      In the impact assessment public consultation questionnaire, stakeholders were asked about the expected impact on their compliance assessment costs of options relating to the TTBER’s market share thresholds and data licensing. The responses provided qualitative, albeit limited, evidence about whether some of the options would have a positive, neutral or negative impact on compliance assessment costs. In particular, ten stakeholders indicated that providing guidance on data licensing would have a positive impact on their compliance assessment costs. Additional qualitative feedback was gathered during the consultation on the draft revised texts. The draft revised texts that were published for consultation incorporated one of the options assessed below. For more details on the results of the public consultation on the draft revised texts, see Annex 2.

(165)

     The impact assessment included a call for evidence, an open public consultation based on an online questionnaire and a public consultation on draft revised rules. Participation in these consultations was voluntary and therefore did not necessarily produce representative results, even though the Commission reached out to categories of stakeholders that are typically under-represented, such as micro- and small stakeholders, representatives of SMEs, and consumer associations.

(166)

     See Section 2.4 above.

(167)

     See, for example, Arora, A. and Gambardella, A. ‘Ideas for rent: an overview of markets for technology’, Industrial and Corporate Change, 19, 3, 2010, p. 789.

(168)

Moreover, the evaluation showed that the current TTBER has been successful in exempting only those agreements that meet the conditions of Article 101(3) TFEU (see, for example, page 25 of the Evaluation Report). The proposed changes can be regarded as incremental to the existing framework, since under Option 1, the text of the TTBER would simply incorporate what is already stated in the Guidelines, and the grace period would be extended by one year. Furthermore, the TTBER only block-exempts agreements from the application of Article 101 TFEU and is without prejudice to the application of other legislation (see also recital 14 of the TTBER).

(169)

     See, for example, Commission decision of 20.12.2012 in Case AT.39230 Rio Tinto Alcan, paragraph 107 and footnote 57.

(170)

     The majority of stakeholders - including one public authority, three industry associations, one company, one think tank, one association of lawyers, two association of IP advisors and litigators - who commented on the market share thresholds for technology markets expressed support for the proposed revisions to the TTBER and Guidelines, which reflect Option 1.

(171)

     See Section 2.1 above. Furthermore, in the consultation on the proposed revised texts, two industry associations stated that certain actors - particularly those specialising in R&D activities and technology valorisation - face greater complexities than others when applying the market share thresholds. They also noted that the revisions to the TTBER and Guidelines reflecting Option 1 would help to address these complexities.

(172)

     This annual periodicity was, for instance, mentioned by one industry association in the context of the public consultation on the proposed revised texts. The baseline scenario reflects the most conservative scenario, in which firms are completely uncertain about how the market share thresholds and the grace period apply to early licensing and therefore carry out market share assessments on an annual basis. It is nevertheless plausible that many firms understand at least that the grace period applies once the licensed technology begins to generate sales. Accordingly, a sensitivity analysis is carried out assuming biannual periodic assessments (assessment at the end of years 2, 4, etc.). The available evidence does not provide information on (i) the average duration of licensing agreements or (ii) the breakdown between one-off and periodic compliance costs under the baseline scenario. For the purpose of this analysis, it is assumed that 50-75% of the costs are one-off costs, while 25–50% represent the recurrent periodic assessments. Economic studies suggest that the average duration of licensing agreements ranges between 6 and 8 years. See, for example, Pressman, L. et al., ‘The licensing of DNA patents by large U.S. academic institutions: an empirical survey’, Nat. Biotechnol., 24(1), 2006, pp. 31–39 (finding an average duration of active licences of 8 years). For simplicity, this assessment uses 7 years as the average duration. Starting from the cost of assessing compliance with the market share thresholds (i.e. EUR 787.5), one-off compliance costs are estimated at EUR 393.75–590.63, while periodic compliance costs range between EUR 196.88–393.75. If periodic assessments are carried out annually, each assessment costs EUR 28.13–56.25; if assessments are conducted every two years, each periodic assessment costs EUR 65.63–131.25.

(173)

     The breakdown of costs incurred by business under the baseline scenario is detailed in the footnote above. The estimation of the savings achieved by postponing one-off costs until the end of year 4 and avoiding several periodic assessments during the term of the agreement is calculated as follows. First, a discount rate of 3% is applied to reflect the time value of money. See page 561 of the Better Regulation Toolbox. The discounted value of postponing a one-off cost is calculated as: costs/(1+discount rate)number of years by which the cost is postponed. Postponing one-off compliance costs by four years therefore corresponds to dividing those costs by 1.12550881, resulting in discounted one-off costs of EUR 349.84-524.77 (so a reduction in present value of EUR 43.91-65.86). Second, the same discount rate and a similar formula are applied to compute the present value of avoided periodic assessments. Under annual assessments, a firm would avoid the following discounted costs: Year 1: EUR 27.32-54.61; Year 2: EUR 26.53-53.06; Year 3: EUR 25.76- 51.53; Year 4: EUR 25.01-50.03. This corresponds to total avoided costs of EUR 104.62-209.23. Under biannual assessments, the avoided discounted costs are: Year 2: EUR 61.86-123.72; Year 4: EUR 58.33-116.66. The overall effective cost reduction is therefore EUR 148.53-275.09 under annual assessments and EUR 164.10-306.24 under biannual assessments.

(174)

     Even though SMEs often have low market shares and would therefore be easy cases to assess as meeting the block exemption, there may be situations in which SMEs exceed the market share thresholds, for instance due to the novelty of the technology or the small size of the relevant market. See also the Evaluation Support Study, p. 92 (suggesting that the efficiency gains stemming from the TTBER are larger for smaller companies, given the scale of self-assessment costs) and p. 306 (noting cases in which even large firms may be deterred from licensing a small part of their intellectual property portfolio due to the costs of self-assessment).

(175)

     See, for example, Gans, J.S., Hsu, D.H. and Stern, S., ‘The impact of uncertain intellectual property rights on the market for ideas: evidence from patent grant delays’, Management Science, 54(5), 2008, pp. 983-985 and 988; Jeong, S. and Lee, S., ‘Strategic timing of academic commercialism: evidence from technology transfer’, The Journal of Technology Transfer, 40, 2015, p. 911; Arora, A. and Gambardella, A., ‘Ideas for rent: an overview of markets for technology’, Industrial and Corporate Change, 19(3), 2010, p. 788; Elfenbein, D.H., ‘Publications, patents and the market for university inventions’, Journal of Economic Behavior & Organization, 63, 2007, p. 694; Hedge, D. and Luo, H., ‘Patent publication and the market for ideas’, Management Science, 64, 2, 2018, pp. 654-655. 

(176)

     The 4+ test in the Guidelines already functions as a soft safe harbour, and the evaluation shows that stakeholders are familiar with its application. See, for example, the Evaluation Report, pp. 30-31. This is further confirmed by the replies to the impact assessment public consultation questionnaire. Therefore, this option is likely to have little or no impact on compliance assessment costs for agreements where four or more independently controlled substitutable technologies are present on the market. 

(177)

     See Section 2.1 of Annex 2.

(178)

See also Chemmanur, T.J., Chen, X. and Zhang, J., The Economics of Patent Licensing: An Empirical Analysis of the Determinants and Consequences of Patent Licensing Transactions, 2024 (explaining the general benefits of licensing for licensors’ and licensees’ firm value, productivity and innovation capabilities), available at https://afajof.org/management/viewp.php?n=133532.

(179)

     With the possible difference that SMEs - given their generally weaker bargaining position - may be more exposed than other businesses to the indirect negative effects of Option 2 arising from the imposition of restrictions with potential anti-competitive effects.

(180)

     See, for example, the judgment of the Court of Justice of 26 February 2026 in C-367/22 P, Air Canada v Commission, EU:C:2026:116, paragraph 60.

(181)

     See, for example, Hellwig, M. and Hüschelrath, K., Cartel Cases and the Cartel Enforcement Process in the European Union 2001 – 2015. A Quantitative Assessment, pp. 15-17, available at https://www.econstor.eu/bitstream/10419/146903/1/869752421.pdf (assessing the cartel cases decided by the European Commission between 2001 and 2015 and showing that the vast majority of firms in these cases were European).

(182)

     See, for example, Chemmanur, T.J., Chen, X. and Zhang,, J., The Economics of Patent Licensing: An Empirical Analysis of the Determinants and Consequences of Patent Licensing Transactions, 2024, available at https://afajof.org/management/viewp.php?n=133532.

(183)

     See Jeong, S. and Lee, S., ‘Strategic timing of academic commercialism: evidence from technology transfer’, Journal of Technology Transfer, 40, 2015, p. 911; Allain, M., Emeric, H. and Kyle, M., ‘Inefficiencies in Technology Transfer: Theory and Empirics’ (January 2011). CEPR Discussion Paper No. DP8206, available at SSRN: https://ssrn.com/abstract=1749847 .

(184)

     Depending on the type of technology licensed (for example, an industrial process to streamline the production of a certain product), a technology transfer agreement can result in a reduction of the licensee’s production costs. See, for example, Katz, M.L. and Shapiro, C., ‘On the licensing of innovations’, The RAND Journal of Economics, 16, 4, 1985, pp. 504-520 (emphasising that this could lead to an increase in industry output).

(185)

     See, for example, Régibeau, P. and Rockett, P., Assessment of Potential Anticompetitive Conduct in the Field of Intellectual Property Rights and Assessment of the Interplay Between Competition Policy and IPR Protection, Publications Office of the European Union, 2011, p. 11. 

(186)

     See, for example, Arora, A. and Gambardella, A., ‘Ideas for rent: an overview of markers for technology’, Industrial and Corporate Change, 19, 3, 2010, p. 792.

(187)

     This could be the case for instance of a licensing agreement between competitors with market power, whereby they cross-license each other their competing technologies and impose reciprocal obligations to provide each other with future improvements of their respective technologies. Likewise, a technology transfer agreement between non-competitors – where the licensor has market power – may enable the licensor to foreclose competing licensors.

(188)

     With the possible difference that SMEs, due to their generally weaker bargaining position, may be more exposed than other businesses to the imposition of restrictions with potential anti-competitive effects, which could negatively affect their overall competitiveness.

(189)

     See the Expert Report on Data Licensing, Section 5.01.

(190)

     See the Expert Report on Data Licensing, Section 5.01.

(191)

     This group of stakeholders included 3 businesses, 3 associations, 1 academic/research institution and 1 other.

(192)

     All of these stakeholders were businesses.

(193)

     This was confirmed by the feedback received from stakeholders in response to Q 2.11 to Q 2.14 of the impact assessment public consultation questionnaire.

(194)

     See the Expert Report on Data Licensing, paragraph 292.

(195)

     See the Expert Report on Data Licensing, paragraph 308.

(196)

     As explained in Section 5.03(a)(i) of the Expert Report on Data Licensing, data can be covered by a variety of legal rights and protections. Data licensing agreements therefore often concern data that is not protected by a technology right covered by the TTBER but by other types of legal rights.

(197)

     See the Expert Report on Data Licensing, paragraph 304.

(198)

     This in particular resulted from the feedback provided by stakeholders in response to Q 2.23 of the impact assessment public consultation questionnaire. Moreover, almost all the stakeholders that provided feedback on the draft rules on data licensing during the public consultation on the draft Guidelines were favourable to the provision of guidance on data licensing.

(199)

     This is a consequence of the fact that, as explained in footnote 196 above, data may be protected by various types of legal rights. The greater the range of legal rights in data that are included in the framework provided by the TTBER and Guidelines, the greater the number of data licensing agreements that will be covered by that framework; see the Expert Report on Data Licensing, paragraph 324. That said, even the guidance foreseen under Option 2 would not cover all data licensing agreements, as explained above in footnotes 150 and 152 when presenting the Options.

(200)

   This estimate reflects the most conservative scenario, where firms are completely uncertain about whether data licensing is already covered by the TTBER. 

(201)

As explained above in Section 2.3, it was not possible to obtain reliable data on the population of bilateral data licensing agreements for production purposes entered into each year in the Union. On the basis of publicly available data, the number of these agreements was estimated in Section 2.3 above to be in the order of a few thousand, in particular between 1,000 and 10,000. Assuming that 20% of those agreements concern data that qualifies as know-how or another technology right covered by the TTBER, the population of this latter type of agreements can be estimated at between 200 and 2000. By multiplying these numbers by EUR 1,848 (the estimated average saving per agreement), the aggregate savings can be estimated in the range EUR 369,600 to EUR 3,696,000.

(202)

If 20% of the relevant population of data licensing agreements is assumed to concern databases protected by copyright or the database sui generis right, the population of this latter type of agreements can be estimated in the range between 200 and 2000. Given that the guidance to be provided under Option 2 is incremental and includes the guidance to be provided under Option 1, the number of these agreements should be added to the number of agreements covered by the guidance under Option 1. This means that the relevant population of agreements affected by the guidance provided under Option 2 can be estimated in the range between 400 and 4000 (see footnote 201 above). By multiplying these numbers by EUR 1,848 (the estimated average saving per agreement), the aggregate savings can be estimated in the range of EUR 739,200 to EUR 7,392,000.

(203)

     For example, in the impact assessment public consultation an association representing licensing executives stated that additional legal certainty on the competition law assessment of data licensing agreements would benefit all undertakings, but especially SMEs investing in new technologies and services based on data sharing. See also the Expert Report on Data Licensing, which states at paragraph 32 that legal uncertainty on the application of Article 101 to data licensing agreements “is especially problematic for small and medium-sized enterprises (SMEs) and research institutions, which often lack the resources to navigate complex compliance assessments in the absence of clear regulatory orientation”.

(204)

     Mitchell, J. et al., Measuring the economic value of data (2021), OECD Going Digital Toolkit Notes, No. 20, OECD Publishing, Paris,  https://doi.org/10.1787/f46b3691-en .

(205)

See the Expert Report on Data Licensing, para. 283.

(206)

     The fact that there are currently no LNGs operating on the market reduces the level of certainty of the impacts foreseen for LNGs.

(207)

     Unreasonable delays or refusals by implementers to take a licence of the technology.

(208)

     Stakeholder feedback (see Annex 2, Sections 2.1(iii), 2.2 and 2.3), from technology owners, pointed to risks of collusion between implementers and the exercise of excessive buyer power. These concerns are primarily based on qualitative submissions rather than observed market practices, given that the Commission is not aware of any LNGs that are operating in the market.

(209)

     See Annex 2 for the feedback to the public consultation questionnaire and the consultation on the draft revised texts.

(210)

     See the report by the Group of Experts on Licensing and Valuation of Standard Essential Patents ‘Contribution to the Debate on SEPs’ (2021), Proposal 75, available here: https://ec.europa.eu/docsroom/documents/45217 . See also R. Peters, I. Nikolic and B. Heiden, Designing SEP Licensing Negotiation Groups to Reduce Patent Holdout in 5G/IoT Markets, Cambridge University Press (2023), which concludes that “LNGs can facilitate SEP licensing efficiencies through reduced transaction costs for both licensees and licensors”.

(211)

     In the public consultation on the draft revised texts, technology implementers (businesses and business associations) supported the proposed soft safe harbour, whereas technology owners (businesses and business associations) opposed it. See Annex 2, Section 2.2 for the results of the consultation.

(212)

     Technology owners (businesses) highlighted this possibility in their responses to the public consultation on the draft revised texts; see Annex 2, Section 2.2.

(213)

     See the Evaluation Support Study, pp 91-93 and Annex 2, Section 2.3.

(214)

     See Annex 2, Section 2.2.

(215)

See Annex 2, Sections 2.1 (iii) and 2.2.

(216)

     Widening the safe harbour too far would be problematic, as the Enabling Regulation only empowers the Commission to block-exempt agreements for which it can be assumed that the conditions of Article 101 (3) TFEU are fulfilled. Moreover, block-exempting agreements that do not meet the conditions of Article 101(3) could lead to distortions of competition and negative impacts for businesses and consumers.

(217)

     Council Recommendation (EU) 2022/2415 of 2 December 2022 on the guiding principles for knowledge valorisation, ST/14448/2022/INIT, OJ L 317, 9.12.2022, pp. 141–148.

(218)

     Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions, The EU Startup and Scaleup Strategy Choose Europe to start and scale, COM/2025/270 final, 28.5.2025.

(219)

     See the references to the Communication on a European strategy for data and the Communication on the Data Union Strategy in Section 1.4 above. 

(220)

     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, 21.7.2023, pp. 1–125.

(221)

     See Article 2(2) of the Enabling Regulation.

(222)

     See in particular Section 2 above.

(223)

     The summary report is available at  https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/14478-EU-competition-rules-on-technology-transfer-agreements-revision-/public-consultation_en  

(224)

     11 businesses, 3 business associations and 1 other.

(225)

     4 businesses, 4 business associations and 1 other.

(226)

     All businesses.

(227)

     1 academic/research institution, 1 other and 1 business association.

(228)

     1 respondent did not answer the question.

(229)

     The questionnaire covered all areas, however some stakeholders did not reply to every question and/or referred to comments made in response to other questions or to separate submissions.

(230)

     Other areas included the current rules on: (i) potential competition, (ii) know-how, (iii) licensing agreements for the purpose of further research and development, (iv) exclusive grant-back obligations, (v) field of use restrictions and (vi) settlement agreements. This factual summary does not cover the feedback received to the (few, targeted) questions on these topics.

(231)

     See Question 2.1.

(232)

     9 businesses, 1 business association and 1 other.

(233)

     1 business association and 1 academic/research institution.

(234)

     20 respondents did not answer the question.

(235)

     See Question 2.11.

(236)

     3 businesses, 3 business associations, 1 academic/research institution and 1 other.

(237)

     All businesses.

(238)

     A business association.

(239)

     21 respondents did not answer the question.

(240)

     See Question 2.6 of the public consultation.

(241)

     7 businesses, 4 business associations, 1 academic/research institution and 1 other.

(242)

     See Question 2.17.

(243)

     4 /businesses and 3 business associations.

(244)

     1 academic/research institution.

(245)

     4 /businesses and 1 other.

(246)

     22 respondents did not answer the question.

(247)

     3 business associations and 1 academic/research institution.

(248)

     1 business association and 1 academic/research institution.

(249)

     3 business associations. 

(250)

     See Question 2.22.

(251)

     4 business, 2 business associations, 1 academic/research institution and 1 other.

(252)

     1 company/business.

(253)

     1 company/business and 1 business association.

(254)

     23 respondents did not answer the question.

(255)

     7 businesses, 1 business association and 1 other.

(256)

     See Question 2.30.1.

(257)

     1 company/business.

(258)

     24 respondents did not answer this question.

(259)

     5 businesses, 1 business association and 1 other.

(260)

     See Question 2.31.1.

(261)

     All businesses.

(262)

     25 respondents did not answer this question.

(263)

     See responses to Question 2.30.1.2. 7 respondents confirmed that – when faced with practical difficulties in calculating market shares in the technology market – they still entered into the technology transfer agreement (albeit with reduced legal certainty or by relying on the 4+ test), while only 3 answered that they abandoned the technology transfer agreement.

(264)

     See the responses to Question 2.31.1.2. 3 respondents confirmed that – when faced with practical difficulties in applying the 4+ test – they still entered into the technology transfer agreement (albeit with insufficient legal certainty), while 2 responded that they abandoned the technology transfer agreement.

(265)

     See Question 2.32.

(266)

     4 businesses and 2 business associations.

(267)

     2 /businesses, 1 academic/research institution and 1 other.

(268)

     All businesses.

(269)

     21 respondents did not answer this question.

(270)

     3 businesses, 1 academic/research institution and 1 business association.

(271)

     5 /businesses, 1 business association and 1 other.

(272)

     2 businesses.

(273)

     20 respondents did not answer the question.

(274)

     See Question 2.36.

(275)

     2 companies/businesses, 1 business association and other.

(276)

     businesses and 1 business association.

(277)

     3 businesses and 1 academic/research institution.

(278)

     21 respondents did not answer the question.

(279)

     See Question 3.22.

(280)

   8 businesses, 4 business associations and 2 others. 5 of these respondents are active as a licensor and a licensee to an equal extent or are organisations representing both licensors and licensees to an equal extent, 8 are active only as licensees or are organisations representing primarily licensees and 1 is neither a licensor nor a licensee nor an organisation representing them.    

(281)

     10 businesses, 1 business association and 1 other. 7 of these respondents are active as a licensor and a licensee to an equal extent or are organisations representing both licensors and licensees to an equal extent and 5 are active only as licensors or are organisations representing primarily licensors.    

(282)

     1 academic/research institution, 1 business association and 1 company/business. 1 of these respondents is active as a licensor and a licensee to an equal extent or is an organisation representing both licensors and licensees to an equal extent, 1 is active only as a licensee or is an organisation representing primarily licensees and 1 is neither a licensor nor a licensee nor an organisation representing them.    

(283)

     Moreover, 5 respondents did not answer the question.

(284)

     See Question 3.23.

(285)

     See Question 3.24.

(286)

     See Question 3.6.

(287)

     7 businesses, 6 business associations and 2 others. 6 of these respondents are active as a licensor and a licensee to an equal extent or are organisations representing both licensors and licensees to an equal extent, 8 are active only as licensees or are organisations representing primarily licensees and 1 is active only as licensor or is an organisation representing primarily licensors.    

(288)

     12 businesses, 1 business association and 1 academic/research institution. 7 of these respondents are active as a licensor and a licensee to an equal extent or are organisations representing both licensors and licensees to an equal extent, 5 are active only as licensors or are organisations representing primarily licensors, 1 is active only as a licensee or is an organisation representing primarily licensees, and 1 is neither a licensor nor licensee nor an organisation representing them.

(289)

     5 respondents did not answer this question.

(290)

     See Question 3.10.

(291)

     11 businesses, 2 businesses associations and 1 other. 9 of these respondents are active as a licensor and 5 are active only as licensors or are organisations representing primarily licensors.    

(292)

     6 businesses, 4 business associations and 1 other. 3 of these respondents are active as a licensor and a licensee to an equal extent or are organisations representing both licensors and licensees to an equal extent and 8 are active only as licensees or are organisations representing primarily licensees    

(293)

     2 businesses, 1 business association and 1 academic/research institution. 2 of these respondents are active as a licensor and a licensee to an equal extent or are organisations representing both licensors and licensees to an equal extent, 1 is active only as a licensee or is an organisation representing primarily licensees and 1 is neither a licensor nor licensee nor an organisation representing them.    

(294)

     5 respondents did not answer this question.

(295)

     29 respondents answered the first five questions, while 28 answered the last one (on the “adequate transparency on the information on licensees of the technology pool”).

(296)

     See Question 3.15.

(297)

     See Question 3.17.

(298)

     8 businesses, 4 business associations and 1 other.

(299)

     8 businesses, 3 business associations and 1 other.

(300)

     3 businesses and 1 academic/research institution.

(301)

     Moreover, 5 respondents did not answer the question.

(302)

     This was suggested by 4 stakeholders.

(303)

     For example, on whether that raw data can be considered know-how.

(304)

     Some technology owners agreed that LNGs could facilitate licensing to SMEs.

(305)

Technology owners stated that the Commission waited more than 15 years after issuing the first comfort letters for technology pools in the late 1990s (for MPEG-2 and DVD) before it introduced a soft safe harbour for pools in the Technology Transfer Guidelines in 2014.

(306)

   The number of entirely negative responses was however limited.

(307)

     The anonymised nature of the replies made it impossible to establish the nature of the participants in this category.

(308)

     Note that not all respondents to this question replied that they were businesses organisations in response to Question 1.

(309)

Small mid-caps are businesses that have 250-749 employees, turnover ≤ €150 million or balance sheet ≤ €129 million; see Commission Recommendation (EU) 2025/1099 of 21 May 2025on the definition of small mid-cap enterprises .

(310)

     It should be noted that (i) some of businesses that categorised themselves as SMEs or representatives of SMEs in the consultation activities did not provide information on their number of employees or turnover and (ii) some of the business associations that claimed to represent SMEs also include large businesses among their members.

(311)

See the Evaluation Report, page 76.

(312)

     See the Evaluation Report, pp. 22-23 and the Evaluation Support Study, pp. 29 and 193.    

(313)

     See the references to the Communication on a European strategy for data and the Communication on the Data Union Strategy in Section 1.4 above.

(314)

     See https://ec.europa.eu/docsroom/documents/63274  

(315)

     See the Evaluation Support Study, page 28.

(316)

     Stakeholders from these sectors were the most active in the various consultation activities.

(317)

     EUIPO, Intellectual Property SME Scoreboard (2022), page 3.

(318)

     European Patent Office (EPO) Patent Commercialisation Scoreboard: European SMEs (2019), page 11.

(319)

     EUIPO, SME Scoreboard (2019), pp. 99-101.

(320)

European Commission (2019). SME panel consultation B2B data sharing - Final Report.

(321)

     It should be noted that (i) some of businesses that categorised themselves as SMEs or representatives of SMEs in the consultation activities did not provide information on their number of employees or turnover and (ii) some of the business associations that claimed to represent SMEs also include large businesses among their members.

(322)

     See Section 4.3 of the Evaluation Report and page 29 of the Evaluation Support Study.

(323)

     The data on costs and benefits in this Annex are consistent with the data in Annex 3.

(324)

     The direct benefits for SMEs can also be cost savings.

(325)

     See Annex 2, Section 2.3, question 2 “If you answered "Business" in Q.1, please specify the size of your business?”.

(326)

It should be noted that not all the respondents to this question categorised themselves as businesses in a previous question.