Review of the Transfer of Technology Block Exemption Regulation (TTBE) 2001 Report shortcomings of the TTBE new generation of regulations more economic approach draft texts for consultation: Oct/Nov entry into force: May 2004

Finding the right balance Licensing is often pro-competitive –integration of complementary assets –quicker entry of new competitors –dissemination of innovation –reward for risky investment Sometimes anti-competitive effects: –link with market power same treatment as other property

Draft new block exemption regulation New approach: what is not excluded is covered safe harbour: market share thresholds –20% for licensing between competitors – 30% for licensing between non-competitors hardcore list conditions

Comparison EU - US BER provides more legal certainty Licensing between competitors: similar policy Licensing between non-competitors: –inter-technology restrictions: similar policy – intra-technology restrictions: differences market integration importance of intra-brand competition price discrimination

The application of the guidelines The guidelines extend by analogy the BE to –Agreement concluded by more than two parties –reproduction and sale of copyright protected products The guidelines provide guidance on the application of the BE and of Article 81 outside the scope of the BE –No presumption of illegality outside the safe harbour of the BE

The tests for applying Article 81(1) Does the agreement restrict competition that would have existed had no licence been granted? Does the agreement restrict competition that would have existed in the absence of its alleged restrictions of competition –Is the restriction objectively necessary for the conclusion of the agreement? Example: passive sales restrictions between licensees for two years

Technology pools Covered only by the guidelines Basic distinctions: –Technological complements and technological substitutes Does integration of technologies create synergies? –Essential technologies and non-essential technologies No particular hostility towards ex ante negotiations of licensing terms