The EU’s new antitrust rules for technology licensing: a turbulent harbour for licensors

Abstract:

On May 1, 2004, a new EC Technology Transfer Block Exemption Regulation (TTBER) came into force to enable automatic clearance of two-party licences under Art.81(3) of the EC Treaty. On the same day, the EU abolished its system of notifications to the Commission/individual exemption and replaced it with a regime of 'self-assessment'. Licensors familiar with the former TTBER will recall that despite its weaknesses, it screened out serious breaches of Art.81(1) without imposing onerous legal demands.

In the author's view, licensors in the new 'do-it-yourself' environment reasonably expected the new TTBER to be user friendly. Instead, the safeguard which determines TTBER applicability particular licences is dependent upon decrypting a number of elusive criteria which could easily lead to different conclusions. Moreover, under the new TTBER, licensors will have a continuing obligation to monitor the relevant criteria to ensure that they remain covered by the block exemption.