European Union: European Commission adopted guidelines on application of Article 101 of the Treaty to technology transfer agreements

On 16 April 2026, the European Commission adopted the revised guidelines on the application of Article 101 of the Treaty on the Functioning of the European Union (TFEU) to technology transfer agreements. The guidelines outline the framework for assessing licensing arrangements under EU competition law and clarify the application of the revised Technology Transfer Block Exemption Regulation (TTBER). The assessment under Article 101 follows a two-step approach. It first examines whether an agreement restricts competition by object or effect and then considers whether any restriction may be justified under Article 101(3) based on efficiencies that meet the required cumulative conditions, including consumer benefit and proportionality. The burden of proof lies with the authority for establishing a restriction and with the parties for demonstrating any justification. The guidelines distinguish between inter-technology competition between different technologies and intra-technology competition between licensees of the same technology, with both relevant to the assessment. Agreements between competitors are subject to closer scrutiny than those between non-competitors, and the guidelines set out criteria for identifying actual or potential competitors, including in situations involving blocking intellectual property positions. Market definition covers both product and technology markets, with technology markets assessed on the basis of the substitutability of technology rights. The TTBER provides market share thresholds for the application of the safe harbour and identifies hardcore and excluded restrictions that either fall outside the exemption or require individual assessment. The guidelines also address specific types of restraints, including royalties, exclusivity, output limits, field-of-use restrictions, tying, and non-compete obligations, as well as settlement agreements, technology pools, and licensing negotiation groups, all assessed under the general Article 101 framework.