(paragraph 44 of Justice Baron's opinion).
- As stated, in the Shlomo case, this court pointed to the commercial characteristics of the relationship between the health plan and the member of the health plan – each resident chooses according to his wishes the health plan to which he wishes to belong; the health plans are entitled to provide additional health services beyond the basic basket; the deductible payments are collected by the health plans as part of their business and out of motivation that can be defined as an economic business. Thus, each health plan determines the deductible payments and their rate according to its own considerations, although approvals from the Minister of Health and the Knesset Finance Committee are required. It was further held in the Shlomo case that in determining whether it is a "dealer", two main considerations must be taken into account – the nature of the action being examined and the purpose of the Consumer Protection Law, and when it comes to a motion to certify a class action, the purpose of the Class Actions Law is also involved.
- The Consumer Protection Law defines a "dealer" as "a person who sells an asset or provides a service through an occupation, including a manufacturer." In the Asel case [Appeal Petition/Administrative Claim 7752/12 Asal v. Israel Lands Administration (November 2, 2014)], it was held that "at the basis of the decision as to whether we are dealing with a 'dealer' or not, there are therefore two considerations: one, which concerns the nature of the action, and the other, which is intrinsically connected to the former, concerns the purpose of the Consumer Protection Law." With regard to the nature of the action, the Supreme Court referred to the case law in the Chertok case [Civil Appeal Authority 2701/97 State of Israel v. Chertok, IsrSC 56(2) 876 (February 3, 2002)], according to which it is necessary to examine whether it is a private commercial action or a public governmental action, on the basis of the concrete circumstances and their suitability to the purpose of the Consumer Protection Law, "to impose the conduct of the business sector and to establish fair rules of play between the consumer and the dealer" and "to reduce the power and information gaps between suppliers who have expertise in their field of business and the individual" (the Chertok case). With regard to the classification of a defendant in a class action as a "dealer" according to Item 1 of the Second Addendum to the Class Actions Law, it was held, on the basis of the ruling in the Asel case, that it is necessary to examine "whether this is the Authority's activity as an authority or its activity as a dealer" [Additional Administrative Hearing 5519/15 Younes v. Mei HaGalil (December 17, 2019)].
- In our opinion, the application of the tests outlined in the case law leads to the conclusion that the health plans should be classified as "engaged" in the operation of the supplementary plan.
- As to the nature of the action:
First, the supplementary plan provides services and medications that are not included in the health basket according to the law, and as it was ruled in the Kfir Sapir case, they are "in the middle between the public-universal level (which is the first layer) and the private level (which is the third layer), and there is ostensibly a fusion between these two dimensions." The majority opinion in the High Court of Justice Hayoun case shows that in the first tier of activity, the health plans do not perform governmental activity, since the health plan is in fact a "service provider" according to the law, and the fact that it is subject to regulation in the Health Insurance Law, the provisions of the Ministry of Health's circulars, etc., and obligations in the field of administrative law, in view of the fact that it is a dual entity does not make its activities in providing medical services under the law governmental activity (see: High Court of Justice Hayoun, paragraph 22 of the opinion of Justice Grosskopf). This is all the more true when it comes to the health plan's activity in Shaban, in the framework of which additional services are provided that the health plan is not obligated to provide under the Health Insurance Law. Indeed, as was determined in the case of Anonymous [Civil Appeal 4431/17 Anonymous v. Anonymous (October 3, 2029)], there are substantial differences between the supplementary plan and an insurance contract, and therefore the supplementary plan is not an insurance contract, but rather more like an "agreement for the provision of services". However, from a material point of view, since we are dealing with the provision of services, and especially when it comes to the provision of services not by virtue of the law but by virtue of an agreement, we are dealing with the action of the health plan as a "dealer".