Policy field
Competition: Antitrust
Background
Art. 101(1) of the Treaty on the Functioning of the European Union (“the Treaty”) prohibits agreements between undertakings that restrict competition, unless they contribute to improving the production or distribution of goods or services or to promoting technical or economic progress while allowing consumers a fair share of the resulting benefits, in accordance with Art. 101(3) of the Treaty.
Technology transfer agreements are agreements by which one party authorises another to use certain industrial property rights (e.g. patents, design rights, software copyrights and know-how) for the production of goods or services. In many cases, such agreements either do not restrict competition, i.e. they fall outside the scope of Article 101(1) of the Treaty, or, where they fall within Article 101(1), they create objective efficiencies that are passed on to consumers and meet the conditions of Article 101(3) of the Treaty. However, technology transfer agreements, or certain clauses within such agreements, can also have negative effects on competition. In particular, they may facilitate collusion, restrict the ability of competitors to enter the market or to expand, or they may harm inter- or intra-technology competition, for example by reducing the incentives to innovate.
Regulation No 19/65/EEC empowers the Commission to apply Article 101(3) of the Treaty, by means of a regulation, to certain categories of technology transfer agreements. The Commission used this empowerment to adopt Commission Regulation (EC) No 316/2014 on the application of Article 101(3) of the Treaty to technology transfer agreements (‘TTBER’), which will expire on 30 April 2026.
The Commission also provided guidance on the assessment of technology transfer agreements in the related Commission Communication - Guidelines on the application of Article 101 of the Treaty to technology transfer agreements (‘Technology Transfer Guidelines’).
The purpose of the review is to gather evidence on the functioning of the TTBER and the Technology Transfer Guidelines, in order to help the Commission to decide whether to let that TTBER expire, or to extend it, with or without amendments.
Reference documents
The TTBER and the Technology Transfer Guidelines are available here.
Target group of the review
All citizens and organisations are welcome to contribute to the review.
Contributions are particularly sought from companies with business operations in the EU which hold industrial property rights and/or enter into technology transfer agreements with other companies. The review process is also likely to interest law firms and economic consultancy firms that advise such companies on competition-related issues. Other stakeholders with a possible interest include academics specialising in EU competition law and industrial property rights.
The experience gathered by the competition authorities and the courts of the EU Member States in applying the TTBER will also be relevant for this review.
The phases of the review
In accordance with the Commission’s Better Regulation principles, the review is divided into two phases: (i) an evaluation phase and (ii) an impact assessment phase.
A. Evaluation phase
The objective of the evaluation phase was to gather evidence on the functioning of the TTBER and the Technology Transfer Guidelines. In line with the Better Regulation principles, the evaluation was based on five evaluation criteria: effectiveness, efficiency, relevance, coherence and EU added value.
The main consultations carried out for the evaluation were published on the dedicated webpage of the “Have Your Say” portal.
1. Call for Evidence
A Call for Evidence was published on 25 November 2022. The deadline for stakeholders to provide feedback was 23 December 2022.
12 stakeholders provided feedback and their responses are published on the Have Your Say portal.
2. Results of the public consultation
A public consultation was launched on 17 April 2023. The deadline for stakeholders to reply to the questionnaire was 24 July 2023.
20 respondents replied to the questionnaire and their replies are available on the Have Your Say portal.
2 other stakeholders also responded to the public consultation but not via the Have Your Say portal. Click here to access their submissions.
Click here to access the factual summary of the contributions received in response to the public consultation.
3. Stakeholder workshop
An online stakeholder workshop was held on 6 December 2023. The workshop focused on areas of the TTBER and Technology Transfer Guidelines that attracted the most comments in the call for evidence and public consultation.
Click here to access the summary of the stakeholder workshop.
4. Evaluation support study
An evaluation support study was carried out by a consortium consisting of LE Europe, European University Institute, Spark Legal and Ramboll Management Consulting.
Click here to access the support study report (including executive summaries in DE and FR).
5. Staff Working Document
A Commission Staff Working Document summarising the results of the evaluation of the TTBER and Technology Transfer Guidelines was published on 22 November 2024. An Executive Summary is available in DE, EN and FR.
B. Impact Assessment phase
A call for evidence and public consultation will be published shortly.
Contact details
Responsible services:
Directorate-General for Competition – Unit A.1 - Antitrust Case Support and Policy.
Please always indicate the reference number in your correspondence: HT.6464
E-Mail address: COMP-TTBER-REVIEW
ec [dot] europa [dot] eu (COMP-TTBER-REVIEW[at]ec[dot]europa[dot]eu)
Postal address:
European Commission
Directorate-General for Competition
Place Madou/Madouplein 1
1210 Bruxelles/Brussel
Belgium
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