The Draft Block Exemption Regulation on Technology Transfer Agreements – Is the New Safe Harbor Less Safe?

On 1 October 2003, the European Commission published its draft block exemption Regulation on the application of Article 81(3) EC Treaty to technology transfer agreements¹ ("Draft TTBER"). The Commission intends to replace the current block exemption Regulation, Regulation (EC) No 240/96 on technology transfer agreements² ("Current TTBER"). This change will come into force on 1 May 2004. At the same time, the Commission published draft Guidelines on the application of Article 81 EC Treaty to technology transfer agreements³ (the "Draft Guidelines").

Both the Current TTBER and the Draft TTBER provide a safe harbour for certain types of intellectual property licensing agreements because they automatically exempt restrictions of competition resulting from these agreements from the prohibition of Article 81(1) EC. Such agreements are valid and enforceable. However, the two TTBERs differ in the requirements which must be met in order for an agreement to qualify for the exemption.