In the margins of these words, but not on the margins of their importance, it should be noted that the argument could have been heard that the existence of a procedure against illegal parallel imports may also deter us from engaging in parallel imports even when it is legal, but this argument was not the basis of the Director-General's determination (paragraphs 510-511 and 530 of the judgment) and was not heard before us, and therefore I am not required to do so.
- On the other hand, I accept the Tribunal's ruling regarding the violation of the agreed order and section 29 of the Law. The Director-General's determination regarding the violation of the provisions of the Agreed Order focused on clause B.1 of the Order, which states that "if a customer refuses to purchase a product of the Company or a customer expresses interest in purchasing a product that is not marketed or manufactured by the Company, the Company shall not take against him measures intended to prevent such purchase or measures intended to deter him from exercising his wish...", and in subsection 1.4, which relates specifically to taking steps in the form of "cessation of the supply of the Company's products other than the product that the customer requested not to purchase or to cease to purchase or threaten to do so". However, the court ruled that it is difficult to view the order as seeking to protect the illegal marketing of products. In the absence of a legal parallel import, not only was there no actual interest in such an import, but there could also be no such interest. In these circumstances, the agreed order was not violated. This is especially so when I have not found, as stated, that there was no proof of the transmission of a general message against parallel imports, on which the Commissioner relied in her arguments.
- With regard to section 29 of the Law, according to which "a monopoly holder shall not refuse unreasonably to provide or purchase the property or service in the monopoly", I accept the Tribunal's determination that in the circumstances of the case it is not an unreasonable refusal. The Commissioner further argued in this regard that the Tribunal erred in its determination, when even the condition of supply on an unreasonable or anti-competitive condition constitutes a violation of section 29 of the Law, and not only an actual refusal, and also in ignoring the fact that the condition was addressed to all customers in a forward-looking manner. However, since we are dealing with illegal imports, and even if we are dealing only with a condition and not an actual refusal, it is difficult to conclude that this is an unreasonable or anti-competitive condition. In addition, the Director-General's position regarding a forward-looking threat has nothing to rely on in light of the determination that the transmission of such a message has not been proven.
- With regard to section 29A of the Law, it is clear that once it has been determined that it has not been proven that a message has been conveyed against legal parallel imports, the determination regarding libels to harm competition, which relied mainly on the said message, cannot stand.
- As for the determination regarding the violation of Sections 1 and 2 of the Monopoly Regulations, it should be recalled that Provision 1 instructs that "the Company shall not condition the supply of the Company's products (in whole or in part), or the terms of their supply, on the purchase of a certain type of beverage only from the Company", and Provision 2 prohibits "exclusive agreements" defined as "agreements between the customer and the Company, both directly and indirectly, whereby the customer shall purchase only the Company's products and shall not purchase a beverage or beverages that are not marketed by the Company...". The court ruled that the general policy and instructions given to the customers that if they reached a parallel import market, they would be swallowed up, in order to violate the aforesaid provisions. However, in the unique circumstances of the case at hand, and taking into account the determination that it has not been proven that a general message has been conveyed against legal parallel imports, as well as the fact that the application of the procedure by the company is done individually only vis-à-vis customers who possessed illegal products (so that the procedure is not included as a contractual stipulation in all of the company's contracts with its customers) - I am of the opinion that the company's argument should be accepted and the determination that the provisions were violated should be canceled.
- Beyond what is required, I will note that there is an additional difficulty with the court's ruling regarding the violation of the monopoly owner's provisions. This determination was based on the factual determination that the procedure did not distinguish between legal and illegal imports, and conveyed a sweeping message against parallel imports. However, as stated above, during the relevant period there was no legal parallel import. The company also pointed to an indication that the procedure sought to distinguish between legal and illegal parallel imports, in that the company's employees were asked to collect a sample of products with Hebrew inscriptions on them, and in this regard, the procedure states: "Emphasis: The customer's blocking of products from the same category will be carried out only after there is an example from the point (for products that do not have a Hebrew inscription on them at all, the blocking can be carried out without bringing an example)." This means that in cases where the drafters of the procedure believed that the product might be legal, they ordered the collection of a sample before imposing a sanction. There is no denying that this mechanism is not perfect. However, its existence teaches us that the procedure included a certain distinction between a legal import and an illegal one. In the circumstances of this case, therefore, there is a difficulty in determining that the procedure did not sweepingly distinguish between the two types of parallel imports. Therefore, for this reason, too, the determination that the provisions to a monopoly owner were violated is problematic, since it was based on the condition inherent in the procedure of supplying the company's products that its customers would refrain from marketing parallel imports, whatever it may be.
At the end of the day, I would like to suggest to my colleagues that the appeal be accepted in part with respect to the chapter regarding the parallel import procedure, and accordingly to reject the respondent's appeal that was filed in this matter. In addition, I would like to propose that the sanction imposed on the company be canceled due to the violations regarding the parallel import procedure and that no order be issued for costs.