Droit de la concurrence et accord de transfert de technologie

On 29 March 2014, the European Commission adopted a revised competition regime for technology transfer agreements.

The European Commission has adopted new rules for the assessment of technology transfer agreements under EU antitrust rules.

The purpose of technology transfer agreements is to enable companies to license the use of patents, know-how or software held by another company for the production of goods and services.

The revised rules aim at facilitating such sharing of intellectual property, including through patent pools, and provide guidance on licensing agreements that are, under certain conditions, likely to stimulate competition.

The regime consists of two instruments:

- First, the Technology Transfer Block Exemption Regulation, which creates a safe harbour for licensing agreements concluded between companies that have limited market power (i.e. market share not exceeding 20% for agreements between competitors and 30% for agreements between non-competitors) and that respect certain conditions set out in the Regulation.

Such agreements are presumed not to have any anti-competitive effect or, if they do, the positive effects are deemed to outweigh the negative ones.

Agreements that meet these conditions are therefore automatically in line with EU antitrust rules.

The new Regulation is available here

- Second, the Technology Transfer Guidelines, which provide guidance on the admissibility application of technology transfer agreements that fall outside the scope of the Regulation’s safe harbour regime within EU competition law.

They are available here

The Commission reports that it has made incremental improvements to the current regime, which overall received positive feedback from stakeholders in the two public consultations that were organized prior to the adoption. The application of the Regulation and the Guidelines by the market players will show whether the new regime brings the appropriate legal certainty to the market.