1. Introduction
The transformation of technological innovations into
economic value depends not only on the development of an innovation but also on
its ability to be used by other undertakings. When an undertaking holding a
patent, design right, know-how, or copyright in software makes a technological
innovation available to another undertaking through licensing, this may
increase production capacity, accelerate the market entry of new products, and
enable the same technology to be applied across different sectors. Technology
licensing agreements therefore constitute an important area of consideration
under competition law. Indeed, relationships arising from innovation-driven
developments have generally been regarded not as an obstacle to competition,
but as an important means of facilitating the dissemination of innovation.
Accordingly, regulatory efforts to encourage such arrangements have continued
over the years.
The key point to consider here is that a licensing
relationship does not merely grant the parties the right to use a new
technology; it may also affect matters such as pricing, production volumes,
sales territories, customer groups, the ability to develop competing
technologies, and access to third parties. As a result, such arrangements may
also have implications for areas that are sensitive from a competition law
perspective. While certain provisions in a licensing agreement may be necessary
to reduce investment risks and ensure the efficient use of the technology,
others may make market entry more difficult or weaken competition between
competitors. The fundamental challenge for competition law at this stage is
therefore to strike a balance between the technology owner's legitimate
interest in its innovation and the need to keep markets open to competition.
The Technology Transfer Block Exemption Regulation Nr.
2026/877 adopted by the European Commission, together with the new Guidelines
on technology transfer agreements, aims to re-establish this balance in light
of the current conditions of the digital economy. The new framework, which
entered into force on May 1, 2026 and will apply until April 30, 2038,
introduces notable changes, particularly with regard to data licensing
agreements, licensing negotiation groups, technologies that have not yet been
commercialized, and technology pools. The significance of the new framework
lies not only in updating the existing rules, but also in the effort to adapt
competition law's approach to technology to evolving forms of production and
business relationships.
2. The Role and Importance of the Block Exemption
System
To understand the newly adopted Guidelines and
Regulation, it is first necessary to understand the function of the block
exemption system. Article 101(1) of the Treaty on the Functioning of the
European Union (“TFEU”), like Article 4 of the Turkish Competition Law
(“TCL”), prohibits agreements between undertakings that restrict
competition. Article 101(3) of the TFEU, similarly to Article 5 of the TCL,
provides an exemption for agreements that meet the relevant conditions.
The Technology Transfer Block Exemption Regulation
establishes a “safe harbor” for technology transfer agreements that fall within
certain market share thresholds and contractual conditions. This allows the
parties to assess, with a reasonable degree of predictability, whether their
agreements meet the conditions set out under the Regulation. However, falling
outside the scope of the block exemption does not, in itself, mean that an
agreement is unlawful. In such cases, the agreement’s actual effects on the
market and the conditions set out under Article 101(3) of the TFEU must be
assessed on an individual basis.
The sensitivity and importance of this area lie in
ensuring legal certainty in the face of changing conditions and evolving
technologies, without discouraging investment in innovation. Accordingly,
clarity in the applicable legal framework is of particular importance. While a
technology owner needs to be able to anticipate whether it can obtain a return
on its development costs, a licensee needs to know, before commencing
production, which contractual restrictions are likely to be considered
acceptable. Clear rules therefore not only reduce the risk of infringement but
also facilitate faster licensing negotiations and help bring technologies to
the market sooner.
3. The New Role of Data Licensing in Competition Law
One of the most notable aspects of the 2026 Guidelines
is that they address data licensing agreements for production purposes under a
separate heading. Today, data is no longer merely a by-product of commercial
activity. From training artificial intelligence models and developing connected
devices to pharmaceutical research and financial risk analysis, data has become
a direct part, material, and input of production in many fields. Accordingly,
access to a particular dataset may be as decisive in certain markets as access
to technology or physical infrastructure.
Where databases are protected by copyright or the sui
generis database right under EU law, their licensing may be assessed under
principles similar to those applicable to technology transfer. The Commission’s
approach is that data licensing can, in principle, promote competition. Indeed,
gaining access through a license to data of a scale or quality that an
undertaking could not collect on its own may enable it to develop a new product
or improve an existing service. Such access can strengthen the division of
labor between the data owner and the licensee, thereby fostering innovative
outcomes in the market. However, as the economic value of data increases, so
too does the risk of exclusionary conduct in the market, including, in the
terminology used under Turkish competition law, the “abuse of a dominant
position.” This risk is particularly relevant where the data concerned is
indispensable or difficult to substitute for competitors seeking to operate in
the market. In such cases, granting a license only to certain undertakings,
imposing unnecessarily broad restrictions on the permitted uses of the data, or
assigning all improvements derived from the data exclusively to the data owner
may affect competitive conditions. Similarly, the use of commercially sensitive
information shared within a licensing relationship in a manner that facilitates
coordination between the parties may give rise to concerns regarding concerted
practices. Accordingly, the assessment of data licensing agreements can no
longer be limited to determining the scope of the underlying intellectual
property right. The source and currency of the data, its substitutability, the
production process in which the licensee uses the data, whether access is
exclusive, and the treatment of outputs derived from the data after the license
expires should all be considered together. By recognizing the actual role of
data in the modern production economy, the new Guidelines pave the way for a
more practical and effective competition analysis of licensing arrangements.
4. Licensing Negotiation Groups: Drawing the Line
Between Collective Bargaining and Buyer Cartels
Another structure addressed systematically in the new
Guidelines is that of “licensing negotiation groups.” These groups are formed
when implementers that require access to the same technology come together to
negotiate licensing terms with technology owners. Particularly in sectors where
access to numerous patents is necessary to implement a product standard,
requiring each manufacturer to negotiate separately may result in high
transaction costs and prolonged disputes. Collective negotiation can make
licensing terms more transparent and predictable. However, an important
consideration is that the undertakings engaging in collective bargaining are
often competitors in the product market. Accordingly, cooperation on license
fees and licensing terms can easily extend beyond the technology concerned and
develop into the coordination of competitive conduct. The exchange of
information among group members concerning product prices, production volumes,
investment plans, or market entry strategies may blur the line between
legitimate licensing negotiations and a buyer cartel. In a properly structured
licensing negotiation group, the objective should not be to eliminate the
bargaining power of the technology owner, but rather to reduce inefficiencies
in the licensing process and create incentives for efficient licensing
arrangements. Voluntary participation in the group, the ability of members to
negotiate licenses individually outside the group, limiting information
exchange to data necessary for the licensing negotiations, and processing
commercially sensitive information through an independent entity are among the
measures that may reduce the risk of anti-competitive coordination. The
Commission’s clarification on this issue is particularly relevant for sectors
with a high concentration of standard-essential patents, such as telecommunications,
automotive, the internet of things, and consumer electronics. The new approach
does not treat collective negotiation as inherently problematic; instead, it
assesses its effects based on the scope of the cooperation, the market power of
the members, and the nature of the information exchanged.
5. Uncommercialized Technologies and the Market Share
Issue
Market share thresholds are an important safe-harbor
criterion in technology licensing. However, calculating market shares can be
difficult where the technology in question has not yet been commercialized. An
invention that has not yet been translated into market sales has no existing
market share, while it is also uncertain which products it may replace in the
future or the extent of potential demand for those products. The practical
difficulties created by the previous approach in such cases could therefore
result in legal uncertainty for innovative projects. The new framework
addresses this issue by simplifying the application of market share thresholds
to pre-commercialization licensing, with the aim of enabling the parties to
proceed with greater predictability. This approach is particularly important in
fields that require lengthy development processes, such as biotechnology, clean
energy, advanced materials, semiconductors, and artificial intelligence. Where
the licensee must make significant investments to turn the technology into a
marketable product, being able to assess the competition law risks associated
with the licensing arrangement from the outset can directly influence
investment decisions.
6. Implications for Companies and Contractual Practice
The new TTBER (Technology Transfer Block Exemption
Regulation) and the Guidelines are not merely theoretical documents of interest
to competition law specialists. They will directly affect the licensing
agreements of companies operating in the European Union market or supplying
technology, software, data, or technology-enabled products to that market.
Companies should first assess whether the parties are competitors, their
positions in the relevant technology and product markets, the exclusivity
structure of the agreement, and any restrictions on sales or production. The
purpose of use, access period, sublicensing, derived data and model outputs,
data update obligations, and post-termination usage rights should be clearly
set out for data licenses. In licensing negotiation groups, membership
requirements, information-sharing protocols, the use of independent advisers,
and the freedom to negotiate individually should likewise be governed by
written rules. Companies should not assume that an agreement previously
considered compliant with competition law will automatically receive the same
treatment under the new regulatory framework. Periodic competition law reviews
would be advisable, particularly for long-term licenses, automatic renewal
provisions, and data uses whose scope may expand over time. It is also
important for legal, technical, and commercial teams to work together, as
whether a dataset is substitutable or a patent is essential to a standard
cannot always be determined from the contractual terms alone.
These developments should also be closely monitored by
Turkish companies. Undertakings that license technology to customers in the
European Union, obtain licenses from technology owners based in the EU, or
manufacture products based on European standards may be subject to EU
competition rules due to their effects on the EU market, even where their
agreements are governed by Turkish law. Moreover, the new approach adopted in
the European Union may influence the regulatory framework in Türkiye and lead
to further legislative developments. This is another important reason for
Turkish companies to closely follow these developments.
7. Conclusion
The new Guidelines represent a comprehensive legal
framework adapted to current economic realities. While preserving the
fundamental logic of the block exemption system, they recognize that technology
transfer is no longer limited to traditional patent and know-how licensing.
Datasets, standard-essential technologies, collective licensing negotiations,
and multi-party technology pools have become common features of today’s
commercial relationships. The key message of the new framework is clear:
cooperation that facilitates access to technology can strengthen competition;
however, where the same arrangements are used to exclude competitors,
facilitate coordination, or entrench market power, competition law intervention
may become necessary. Accordingly, the focus should not be limited to the legal
form of an agreement but should also extend to its actual function in the
market. The 2026 TTBER and Guidelines provide companies with a more up-to-date
roadmap while also calling for a more careful, interdisciplinary, and
effects-based approach to compliance in the licensing of data and technology.
Att. Melda İz
References:
1. European
Commission, “Commission updates EU competition rules for technology licensing
agreements”, 16 April 2026. https://ec.europa.eu/commission/presscorner/detail/en/ip_26_809
2. Commission Regulation (EU) 2026/877, Technology Transfer Block
Exemption Regulation, 21 April 2026. https://eur-lex.europa.eu/eli/reg/2026/877/oj
3. European
Commission, Guidelines on the Application of Article 101 to Technology Transfer
Agreements, C/2026/2323. https://eur-lex.europa.eu/eli/C/2026/2323/oj
4. European
Commission, Competition Policy, Technology Licensing Agreements – TTBER. https://competition-policy.ec.europa.eu/antitrust-and-cartels/legislation/ttber_en
