Technology Transfer

Subsequent to Spain’s growing participation in international markets and its membership in the European Union, Spanish legislation regulating currency exchange and technology transfer controls has been liberalized, and restrictive policies have been replaced by policies intended to promote international transactions. Controls on transactions of this type no longer precede such operations but are instead carried out afterwards, focusing particularly on fiscal matters, in as much as returns declaring these transactions must be filed and the corresponding taxes paid.

Therefore, technology transfers should now be examined from the standpoint of competition law, and technology transfer agreements in the broad sense of the term (bearing on patents, know-how, franchising, etc.) may now be said to be subject to Spanish and European Union legislation governing restraint of competition.

Thus, attention can be drawn to the Spanish Defense of Competition Act, Spanish National Law 15/2007 of July 3, 2007. The Implementing Regulations to this law are set out in Royal Decree 261/2008 of February 22, 2008. As regards European Union Law, attention can be drawn to Commission Regulation (EU) No. 316/2014 of March 21, 2014 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to categories of technology transfer agreements (TTBER) that has recently replaced Regulation (EC) No. 772/2004 of April 27, 2004 on the application of Article 8(3) of the Treaty to certain categories of technology transfer agreements; Commission Regulation (EU) No. 1217/2010 of December 14, 2010, on the application of Article 101(3) of the Treaty on the Functioning of the European Union to certain categories of research and development agreements; and Commission Regulation (EU) No. 1218/2010 of December 14, 2010, on the application of Article 101(3) of the Treaty on the Functioning of the European Union to certain categories of specialization agreements. Additionally, it shall be noted that the first Spanish Trade Secrets Act has just been approved (1/2019 Act), devoting its Chapter III to trade secrets as subject matter of a property right, and its Articles 6 and 7 to the license and transfer of trade secrets.