European Commission promotes Data Licensing and Joint Negotiations in Newly Updated Rules for Technology Licensing Agreements

On April 16, the European Commission (“Commission”) updated its 2014 Technology Transfer Block Exemption Regulation (“TTBER”) and the accompanying guidelines on technology transfer agreements (“Guidelines”). The TTBER sets out when technology licensing agreements that might otherwise raise antitrust concerns under the EU rules on anticompetitive agreements (Article 101) are presumed to be procompetitive and therefore fall within the TTBER’s “safe harbor.” The Guidelines provide guidance on the application of Article 101 to technology transfer agreements that fall outside that safe harbor.

The TTBER and its Guidelines are grounded in the premise that technology licensing is fundamentally procompetitive. Their purpose, therefore, seeks to balance the application of competition principles with the importance of providing companies with strong incentives to license their technology to third parties. As a result, the TTBER and its Guidelines are generally more permissive than comparable EU regulations, affording companies considerable flexibility to protect their innovations and technology while incentivizing them to license it to others.

The main updates to the rules reflect the strategic importance of data and greater use of standard-essential technologies to enable interoperability between products in today’s digital economy.

• Data licensing. The updated framework brings “data licensing” within the scope of the TTBER and the Guidelines, thereby reducing the risk that pro-competitive licensing arrangements fall into a gray zone simply because the “technology” being licensed is data rather than a classic intellectual property (“IP”) asset, like a patent. This is a meaningful development for data-driven sectors where datasets are a key production input. The updated Guidelines recognize that licensing data for production use typically increases efficiency and can enable downstream innovation and market entry. They set out, based on the principles of the TTBER, when data licensing agreements will and will not raise competition concerns when they fall outside the safe harbor.
  
  
• Licensing Negotiation Groups (“LNGs”). The updated Guidelines set out the relevant factors for assessing whether LNGs are likely to restrict competition. Subject to appropriate safeguards, the Commission finds that joint negotiations can reduce transaction costs, create more balanced negotiations, and improve access to standardized technology. The Guidelines provide greater legal certainty to companies jointly negotiating access to important industry technologies and data, and particularly to those negotiating access to standard essential patents. The Guidelines also provide that LNG members are unlikely to have collective market power if combined demand and downstream shares are below 15%. This favorable approach to LNGs may not necessarily align with how the U.S. antitrust regulators might review joint negotiations as evidenced in the U.S. Department of Justice’s recent investigation into the licensing practices of European car manufacturers.¹ LNGs that comply with EU antitrust law may, therefore, still draw U.S. scrutiny.
  
  
• Technology pools. The Guidelines define technology pools as “arrangements whereby two or more parties assemble a package of technology which is licensed to contributors of the pool and third parties.” The updated Guidelines provide that technology pools must disclose both the individual technology rights included in the pool and the methodology used to assess their essentiality. To benefit from the safe harbor in the Guidelines, the technology rights that are being licensed must be essential and the pools must license all potential licensees on FRAND terms. Outside of the safe harbor, it is possible to include essential and non-essential technologies in the pool. Essentiality, however, is an evolving scale and technologies considered essential when creating the pool may not be so in the future as alternatives are developed. This may require pools to offer new and existing licensees a license that excludes the no-longer essential technology, at a correspondingly reduced royalty rate, to make sure that the third-party alternatives are not foreclosed.
  
  
• Thresholds for safe harbor clarified. The updated TTBER maintains that subject to certain conditions, the safe harbor will apply to technology transfer agreements if the parties’ combined shares are below 20% where the parties’ activities overlap, and below 30% when they do not overlap. The updated rules introduce two key clarifications on these thresholds. First, technologies that are not generating sales are treated as having zero market share. Second, parties to technology transfer agreements that fell within the safe harbor at the time of the agreement, but later on exceeded market share thresholds, now benefit from a three-year grace period (instead of two previously) during which they continue to benefit from the safe harbor protection.

Companies should review and assess their licensing agreements based on the updated TTBER and Guidelines. The new rules apply as of May 1, 2026.

The O'Melveny antitrust team has deep expertise advising clients on technology licensing, SEP/FRAND aspects, compliance programs, and significant experience navigating cross-border regulatory issues.

¹ MLex, BMW, Volkswagen, others under US DOJ antitrust investigation over licensing, March 23, 2026, available here; MLex, Auto-sector licensing, port operators get EU guidance in first ‘comfort letters’, July 9, 2025, available here.

This memorandum is a summary for general information and discussion only and may be considered an advertisement for certain purposes. It is not a full analysis of the matters presented, may not be relied upon as legal advice, and does not purport to represent the views of our clients or the Firm. Stéphane Frank, an O’Melveny partner licensed to practice law in Brussels (Belgium) and Paris (France); Vanessa Turner, an O’Melveny partner licensed to practice law in Brussels-Capital Region, Düsseldorf (Germany), and England and Wales; Riccardo Celli, an O’Melveny counsel licensed to practice law in Brussels-Capital Region, England and Wales, and Italy; François Vanherck, an O'Melveny counsel licensed to practice law in Paris (France); and Mateusz Ryś, an O'Melveny associate licensed to practice law in Brussels (Belgium), contributed to the content of this newsletter. The views expressed in this newsletter are the views of the authors except as otherwise noted.

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