Competition

Actions of the State were subject to Art.18 of the Constitution and if any action of the State intended to eliminate competition in a trade, the same shall be hit by the said Article, as it did not permit the State to confer any privilege on a private person or any private or public corporation to have monopoly in any trade, business, industry or service

Article 25, while ensuring equality of all citizens, covered the entire field of State action, it would extend not only when a citizen was discriminated against in the matter of exercise of his rights, but also in matter of granting privileges vis-à-vis giving jobs by the State, granting permits or licences, inviting tenders for Government contracts or issuing quotas

Fundamental Rights to due process under Art. 4 of the Constitution, freedom to carry out a lawful trade or business under Art.18 by maintaining fair competition and right against discrimination under Art.25 of the Constitution collectively provided requisite Constitutional underpinning to maintain level playing field, in all public sectors, at all times.

Merger would only be found to meet the "lessen or prevent substantially competition" standard where it was likely to create, maintain or enhance the ability of the merged entity to exercise market power, unilaterally or in coordination with other firms

Market power was the ability to profitably influence price, quality, variety, service, advertising, innovation or other dimensions of competition

Market power was the ability to maintain prices above the competitive level for a considerable period of time without such action being unprofitable; where price was generally used as shorthand for all aspects of a firm's actions that had an impact on buyers

If a merger did not have or likely have market power effects, question of substantially lessening or preventing competition would not arise

Merger's likely effect on market power was what determined whether its effect on competition was likely to be "substantial"

Two key components in assessing substantiality under the "lessening" branch were the degree and duration of the exercise of market power

Degree and duration of the exercise of market power could also be considered under the "prevention" branch.

Definition.

Said merger was likely to result in a prevention of competition but the efficiencies generated by the merger offset any proven anti-competitive effects

Commissioner of Competition failed to meet her burden to prove the quantifiable anti-competitive effects of the merger

Supreme Court agreed that the merger would likely prevent competition substantially, however, it accepted appellant-company's efficiencies defence and allowed the merger.

Legal test to determine whether a proposed transaction may result in a substantial prevention of competition stated.

Merger likely to prevent competition substantially but the efficiencies generated by the merger offsetting any proven anti-competitive effects

Proper approach to be adopted by courts for the efficiencies defence stated.