Technology licensing: new compasses for companies to navigate to safe harbours

The EU Technology Transfer Block Exemption Regulation (TTBER) (which was assimilated into UK law following Brexit) expired on 30 April 2026. Following separate public consultations, the European Commission (Commission) and the UK Competition and Markets Authority (CMA) have each introduced new legislation: the revised EU TTBER and the UK Technology Transfer Block Exemption Order (TTBEO). These will continue to provide an automatic exemption from EU and UK competition law, respectively for certain licensing agreements typically covering intellectual property (IP) rights to produce goods or services.

While the overall structure and core conditions of the exemptions remain broadly unchanged, the revised TTBER (together with the revised EU guidelines (TTBER Guidelines)) and the TTBEO introduce a number of significant changes and clarifications.  These updates are particularly relevant for businesses that license technology across the EU and UK, or that rely on data driven, collaborative or cross border licensing arrangements.

The CMA also announced on 30 April 2026 that it is consulting on its draft guidance on the TTBEO.  The consultation closes on 11 June 2026.

Key changes to the EU and UK block exemptions

The EU and UK block exemptions provide an automatic safe harbour for technology licensing agreements if they fulfil all conditions of the TTBER or TTBEO respectively. These safe harbours remain broadly unchanged in substance, but the revised rules provide certain clarifications, including:

• Clearer rules on territorial and customer restrictions: The revised rules explicitly adopt the traditional definitions of “active” and “passive” sales, which helps clarify when territorial and customer restrictions are permitted in technology licensing agreements. In practice, this should make it easier for businesses to assess which types of restrictions fall within the safe harbour. 
• Longer grace period where market shares increase: If the parties’ market shares increase above the relevant TTBER safe harbour thresholds during the life of an agreement, the agreement will continue to benefit from the safe harbour for three years instead of two. This change is designed to provide greater legal certainty, particularly where the parties’ market shares fluctuate as a result of innovation or the launch of new technologies.

Key changes to EU TTBER Guidelines

The revised TTBER Guidelines do not introduce significant changes to the traditional technology licensing agreements covering patents and other IP rights. The guidance on grant-backs, field-of-use restrictions, improvements and exclusivity, for example, remain unchanged.

The revised TTBER Guidelines do, however, introduce two developments that were not addressed previously, i.e. data as a licensing asset, and new and expanded guidance on cooperative licensing both at the patent owner and the implementer side.

New guidance on data licensing: The revised TTBER Guidelines introduce a competition framework to assess licensing of data in as far as the data qualifies as an existing technology, e.g. production know-how, or as a database protected by copyright or the EU sui generis database right.  In the same way as for technology licensing, the TTBER generally considers data licensing to be pro-competitive and applies a similar assessment framework.  The revised TTBER Guidelines introduce a Data Act safe harbour (i.e. data-sharing agreements mandated by Chapter II of the Data Act (Regulation (EU) 2023/2854) will generally comply with EU competition law); and consider that information exchanged in the context of database licensing will often not restrict competition “by object” (i.e. it is not automatically considered anticompetitive).

New guidance on licensing negotiation groups (LNGs): The revised TTBER Guidelines address the competition law treatment of LNGs, where technology implementers join forces to negotiate licensing terms with right holders.  The Commission’s framing is practical:

• First, the revised TTBER Guidelines recognise that LNGs can generate efficiencies, such as reducing transaction costs, and supporting more informed and balanced licensing negotiations.  At the same time, they highlight possible competition risks including the build-up of excessive buyer-side bargaining power and the risk of coordination between implementers in downstream markets. 
• Second, LNGs are not treated as inherently problematic.  However, the revised TTBER Guidelines explain that the risk ultimately depends on how an LNG is structured and operated.  In particular, the focus is on whether the group is genuinely limited to what is objectively necessary for licensing negotiations, as opposed to a vehicle for broader buyer-side coordination that suppresses competition. This follows a recent Commission informal opinion where it stressed the importance of voluntary and open participation in LNGs as well as the need to minimise information exchanges.

The EU TTBER itself does not create a “safe harbour” for LNGs – in fact, it is clear from the Commission’s explanatory note that LNGs are explicitly excluded from the TTBER’s scope.  Instead, the revised TTBER Guidelines provide a framework for assessing whether an LNG is likely to lead to restrictive effects, both upstream and downstream (e.g. by limiting coordination strictly to what is necessary for negotiating licence terms). As a result, businesses considering participation in, or engagement with, LNGs should continue to assess these arrangements carefully on a case‑by‑case basis. This is particularly important for groups operating on a global basis. The US Department of Justice has issued public statements that are sceptical of LNGs, framing them as buy-side cartels.

The draft TTBEO guidance does not include specific guidance on LNGs, on the basis that the CMA has no institutional experience in assessing them and no knowledge of LNGs currently operating in the UK.  Instead, the guidance proposes that LNGs be assessed on a case-by-case basis.

Amended guidance on technology pools: The Commission has tightened its approach to technology pools (i.e. arrangements whereby two or more parties assemble a package of technology rights for licensing out to contributors to the pool and/or to third parties), with a greater emphasis on transparency and fair licensing outcomes. The overall direction is towards clearer safeguards around how pools are constituted and run.

• Licensees must be clearly informed of which technology rights are included in the pool and how their essentiality has been assessed, reinforcing the principle that only essential technologies should be pooled.  
• The revised TTBER Guidelines strengthen the role of fair, reasonable and non-discriminatory (FRAND) licensing, addressing concerns about bundled licensing structures and royalty stacking (multiple cumulative royalty payments). Specifically, the FRAND terms should ensure that licensees are not charged more than once for the same technology rights, thereby avoiding “double dipping”.

The draft TTBEO guidance takes a similar approach to technology pools to that set out in the revised TTBER Guidelines.

More flexibility on calculating market shares: The revised TTBER Guidelines provide additional guidance on how to calculate market shares in technology markets. Technologies that have not yet generated sales of contract products are treated as having a market share of zero. While the default approach remains to use sales data from the preceding year, the revised TTBER Guidelines now expressly allow a three-year average where the most recent year is not representative of the parties’ market position.

Key differences between the EU TTBER and UK TTBEO

As noted above, the EU TTBER has been mirrored in the UK by the TTBEO. While the UK regime is closely aligned with the EU framework and adopts the same overall structure, it is not identical in all respects.  As a result, licensing arrangements – particularly those with a cross border or multinational dimension – must be assessed separately under each applicable regime.

Additional UK test on competition technologies: It can sometimes be challenging to apply the market share part of the safe harbour test in practice.  The UK TTBEO seeks to address this by offering an alternative route to the strict market share thresholds. If they cannot be applied in practice, the UK TTBEO safe harbour will still be met if:

• there are at least three other independent competing technologies available in the market, which are real, concrete and independently controlled; and 
• the relevant market share thresholds for the contract products are met (even if it cannot be determined whether the market share thresholds in respect of the licensed technology rights are met).

The approach is consistent with the CMA’s approach under the UK Vertical Agreements Block Exemption Order, which similarly seeks to provide flexibility where rigid market share tests may not capture competitive realities. The EU TTBER does not provide equivalent flexibility where the safe harbour’s market share thresholds cannot be applied.

Divergence in “Technology Rights” definition: Under the UK TTBEO, utility models are not included as a technology right to which the UK TTBEO applies. Conversely, the EU TTBER does apply to such models, which are common in a number of European jurisdictions.

Divergence in “know-how” definition: Under the UK TTBEO, know-how includes information which is significant and useful for both the production and sale of the relevant products. Under the EU TTBER, the definition is narrower and only covers information which is significant and useful for production.

Different enforcement approaches: the enforcement approaches under the UK TTBEO compared with the EU TTBER differ in some respects. For example, the Commission - in theory - has the power to withdraw the block exemption across an entire market where parallel networks of agreements cover more than 50% of the market. The CMA does not have an equivalent market-wide power under the UK TTBEO and can only withdraw the benefit of the block exemption on a case-by-case basis. The impact of this may, however, be less significant in practice on the basis that the Commission has not to date made use of this power.

Comment

Although the revised EU TTBER and the UK TTBEO broadly preserve the familiar framework for technology transfer agreements, the changes and clarifications introduced by the new regimes mean that businesses should not assume that existing licensing arrangements continue to benefit automatically from the safe harbour.  

Both the EU TTBER and the UK TTBEO provide for a one-year transitional period: agreements which, on 30 April 2026, satisfied the conditions of the former TTBER shall continue to be benefit from the safe harbour until 30 April 2027. Nevertheless, businesses with cross‑border EU/UK licensing structures, data‑driven arrangements and/or collaborative licensing models (including LNGs and technology pools) may wish to review their agreements in light of the updated rules and, in the EU, the revised TTBER Guidelines. This will be important both when negotiating new licences and when managing longer‑term or strategically significant technology arrangements.  Businesses should also review the types of know-how being licensed, as an agreement may benefit from the safe harbour under the EU TTBER but not the UK TTBEO.

Further reading on the technology transfer block exemptions

Shaping the Future of UK Tech Licensing: CMA’s Final TTBER Recommendations