Agreements that have been shown to have pro-competitive effects (Article 101, paragraph 3, of the TFUE) are excluded from the prohibition of Article 101, paragraph 1. Certain categories of agreements presumed to meet these requirements are defined in category exemption regulations. If the parties to an agreement remain within these rules, they know that the agreement is in accordance with cartel law and is therefore applicable and is not subject to potential measures taken by competition authorities or competitors. Despite the practical drawbacks – particularly with regard to the definition of “market share,” regulations provide legal certainty. A final notable change is that, in a revised section of its guidelines (point 4.4), the Commission has recognised the competitive qualities of technology pools, particularly patent pools, and has therefore developed the rules for protecting these pools in safe ports. The scope of the category exemption regulation has been clarified in order to exclude all agreements covered by the exemptions by category for research and development (R and; D) and specialization agreements. As a result, the rules on competition exemptions for specialisation agreements and research and development agreements prevail over GMO. Specialization agreements are made between companies in order to optimize production capacity through joint production between companies or to agree that one company stops the production of a given product to buy it from another. The category exemption regulation does not apply to research and development agreements (R (D) that if the specific category exemption regulations (BERs) relating to the R and D and specialization agreements are not applicable. The new GMO TT introduces a new test to determine whether certain provisions of a technology transfer agreement, such as the purchase of raw materials or equipment from a licensee or the use of the licensee`s trademark, are exempt from the competition rules applicable to enterprise-to-company agreements and the technology transfer agreement itself. In addition, the new regulation also excludes from the class exemption any direct or indirect obligation of one party (probably of the licensee) not to question the validity of the other party`s intellectual property rights. This exclusion does not mean that there can be no exemption from authorization. As with all exceptions to the scope of the general exemption from the Regulation, an individual exemption under Article 101, paragraph 3 of the EUTS remains possible in principle, but depends on a case-by-case review by the Commission.
However, there is an exception to the new regulation. In the case of an exclusive license, a technology transfer agreement that requires the contract to be terminated when the exclusive licensee challenges the licensee`s intellectual property rights is exempt from the settlement. The old category exemption regulation for technology transfers did not provide a safe haven for restrictions that required the taker to pay out their own separable improvements or new applications of the technology granted exclusively to the licensee (or a designated third party). “Severable” meant that the improvements could be exploited without violating the licensed technology.