First Condition. The first condition of art. 101(3) TFEU requires the agreement to produce efficiency gains. However, this only covers economic efficiencies: improvement of the production or distribution of goods or promoting technical and economic progress.75 Thus, non-economic efficiencies that are not directly related to the subject of the agreement and not directly valued by the consumers within the relevant market are generally not accepted under the narrow reading of the article.76 There has been case law which would seem to imply that in some cases even non-economic justifications would be allowed. In Metro I the CJEU ruled that non-economic justifications may be accepted, but only in limited cases when they appear together with the economic efficiencies.77 In the CEDED-case, the Commission allowed for non-economic efficiencies, but this was only because it could measure these efficiencies in economic terms.78 Thus, the inclusion of non-economic efficiencies is in reality only allowed under the narrow interpretation when they either support economic efficiencies or can be translated into economic efficiencies. The Commission Guidelines on the applicability of art. [101 of the Treaty] to horizontal cooperation agreements do state that environmental benefits can be taken into account in assessing the efficiencies the agreement creates.79 However, there are strict requirements for this: the 74 Commission, ‘Guidelines on the application of Article 81(3) TFEU’ 2004/C 101/08. 75 Ibid para 33.
First Condition. Efficiency gains
