European Commission Updates Antitrust Rules for Technology Transfers (including Data Licensing)

Ahead of the expiration of the previous antitrust rules governing the transfer of technology rights (such as know-how, patents and various other rights) at the end of April, the European Commission (“Commission”) has published final versions of a new Technology Transfer Block Exemption Regulation (“TTBER”) and new Technology Transfer Guidelines (“Guidelines”). These final versions follow the publication of draft versions of both documents in September 2025 for public consultation.

The new TTBER and Guidelines will come into force on 1 May 2026 and expire after 12 years on 30 April 2038. The most important changes are contained in the Guidelines and are meant to reflect two important developments in the market.

Data licensing now covered by the Guidelines

Reflecting the growing importance of data licensing, the Commission has added explanations in the Guidelines of how it will apply the rules on technology transfers to the licensing of data.

First, the Commission clarifies that it will generally apply the principles of the TTBER and the Guidelines to databases protected by either copyright or sui generis rights defined in the Database Directive (Directive 96/9/EC) which are licensed for the production of goods or services. The Commission considers the licensing of such databases as giving rise to similar considerations as the licensing of the technology rights already explicitly covered by the TTBER.

Second, the Commission clarifies that for all other data licensing agreements it will determine on a case-by-case basis whether to apply the principles of the TTBER and the Guidelines. The characteristics of the data licensed, and the level of investment involved in obtaining the data will be key factors in this determination.

Third, the Guidelines also contain explanations of how to assess cases in which the data licensed contains commercially sensitive information.

Finally, the Guidelines deal with situations in which the data licensing is mandated by EU law. In these cases, data-sharing obligations will be taken into account when applying the TTBER and the Guidelines. Moreover, data-sharing agreements according to Chapter II of the Data Act (Art. 3-7) are generally considered permissible – unless used to disguise an agreement restricting competition.

Introducing rules on licensing negotiation groups

In a new section in the Guidelines, the Commission also introduces rules governing the permissibility of licensing negotiation groups (“LNGs”) under European antitrust rules. LNGs are groups of licensees (who can be competitors or companies active on different markets) jointly negotiating the licensing of technology rights (in particular patents) from the rights holders.

LNGs have been a controversial topic recently. The first publicly known example, an LNG in the automotive sector, received comfort letters confirming its permissibility by the German Federal Cartel Office in the summer of 2024 (see our Noerr Insights article) as well as the Commission in the summer of 2025 (see our Noerr Insights article). However, in March 2026 it became known that the same LNG is now subject of an investigation by the US Department of Justice into whether it constitutes a buyer cartel under US antitrust law (see here).

With respect to LNGs, the Guidelines convert this first case practice by the Commission into a list of factors to be considered in future assessments of the permissibility of LNGs under European antitrust law. Most importantly, an LNG will not be considered to have market power if its members have a combined market share of not more than 15% as both (i) licensees of the technology rights and (ii) as sellers of any products incorporating the licensed technology rights.

Notably however, the Commission decided to eliminate a safe harbour for LNGs (i.e., a set of conditions under which an LNG would be presumed to be permissible) from the Guidelines. Such a safe harbour had been included in the draft of the Guidelines published last fall but had received heavy criticism from companies active in the licensing of patents in particular.