On 18 February 2016, EFTA Surveillance Authority Decision no. 38/15/COL of 4 February 2015 adopting a notice “Guidelines on the applicability of Article 53 of the EEA Agreement to technology transfer agreements” [2016/96] was published in the Official Journal of the European Union (the “Guidelines”).
The Guidelines set criteria and options that may be used on a case by case basis for assessing whether a technology transfer agreement may restrict actual or potential competition, either by its scope or by its effects. In this respect, the Guidelines address aspects pertaining to market definition, as well as distinction between competitors and non-competitors.
For the purpose of the Technology Transfer Block Exemption Regulation (“TTBER”, i.e., Commission Regulation (EU) No 316/2014 of 21 March 2014 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to categories of technology transfer agreements), the Guidelines define and detail concepts such as “technology transfer agreement”, “transfer”, “agreements between two undertakings”, “agreements for the production of contract products”, and regulate the market share thresholds of the safe harbour, hardcore restrictions of competition (price restrictions, output restrictions, market and customer allocation between competitors, and agreements between non-competitors concerning price fixing and passive sales by the licensee), and the excluded restrictions.
In addition, the Guidelines deal with the application of Art. 53 of the Agreement on the European Economic Area (“EEA Agreement”) to various types of licensing constrains, such as exclusive licensing and sales restrictions, output restrictions, field of use restrictions, captive use restrictions, tying and bundling and non-compete obligations, as well as with technology transfers by means of settlement agreements, especially with the case where such settlement agreements include pay-for-restriction/pay-for-delay arrangements, cross-licensing or non-challenge clauses.
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