According to the script, the employees were required to inform the customer that the company holds a legal opinion stating that the parallel import products in their possession are illegal and therefore they cannot sell the company's products in the relevant category until the illegal goods are removed. For example, a specific case of a customer to whom the supply of products was stopped was mentioned until the company's personnel were convinced that he no longer had parallel import products. Against the background of the aforesaid, the Commissioner determined that the company had adopted an improper policy to thwart parallel imports. It referred to the fact that the provision regarding the cessation of supply was sweeping and did not distinguish between legal and illegal parallel imports; that the procedure did not establish a policy for the resumption of supplies, nor did it specify how an examination should be conducted regarding the legality of imports prior to the blocking of supply. It was found that the effect of the procedure was also expressed in cases where the company's employees used it to persuade customers to remove parallel import products from their possession, without the actual supply being stopped, and that this effect holds a major part of the competitive damage caused by the procedure. In addition, the company's claim of selective enforcement in relation to another company was rejected, while it was clarified that the same provisions did not apply to the companies during the relevant period and that the practices in question differed from one another. It was further held that although during the relevant period there was no evidence of standard and legal parallel imports, the difficulty that arises due to the issue of the legality of parallel imports does not justify a sweeping policy of prohibiting parallel imports.
- Against these and other rulings, the company filed an appeal with the Jerusalem Competition Court, which was essentially rejected in the judgment of June 27, 2023, the subject of the appeals before us. Within the framework of the appeal, the company raised various arguments regarding various chapters in the Director-General's determination and regarding general issues such as the strength of the evidence and the threshold of proof required for the imposition of a financial sanction, which I did not see fit to elaborate on at this stage. Consideration of these arguments will be given below.
The main points of the judgment relevant to our case
- The Tribunal rejected the appeal in essence, while adopting the main determination of the Director-General that the company had breached its statutory duties and which were imposed on it by virtue of it, in a manner that justified the imposition of a financial sanction. In addition to the aforesaid, the court accepted some of the company's arguments and also reduced the amount of the financial sanction. It was held that there was no proof of a violating policy with respect to section 29 of the Competition Law and with respect to the order agreed upon in the chapter dealing with parallel imports; that the prohibition in the instructions to a monopoly holder regarding "exclusive agreements" in the chapter of the agreement period clause was not violated; and that even though the company's claims regarding the individual infringements in the refrigerators chapter were rejected, the company's violating policy regarding refrigerators was not proven. In the framework of the appeals before us, only the Court's rulings on issues that remain in dispute are addressed, and these will be detailed below.
- (-) The strength of the evidence and proof. The court rejected a series of arguments by the company in this regard. Among other things, the company's argument that imposing a financial sanction under the law is similar to imposing a criminal sanction and that this is supported by European law. It was held that this position does not reflect the law and has not been adopted in Israeli case law; that the proceeding before us is an administrative or civil proceeding that is not accompanied by the social labeling involved in a criminal conviction; and that the arrangement in the law is based on similar arrangements in Israeli legislation relating to other administrative authorities, and in any event, the positions of the European Competition Commission are not binding on Israeli law. For a similar reason, the company's argument that in view of the amount of the sanctions, the scope of the violations and the investigative powers exercised, a standard of proof of reasonable doubt should be applied instead of a balance of probabilities. It was determined that the standard of proof and the necessary evidence were administrative, and the collection of the evidentiary infrastructure was done accordingly while relying on the administrative evidence test. The tribunal also rejected the argument that the factual basis before the commissioner was lacking, while the commissioner refrained from making necessary inquiries and ignored contradictory evidence. Instead, it was determined that the factual basis bases the Director-General's determination in its entirety, and the circumstances of the case do not justify deviating and imposing an increased burden that exceeds that which was the basis for the Director-General's determination.
- (-) The clause of the period of the agreement. The court rejected most of the company's arguments regarding the clause of the agreement period. It was determined that from its content and the manner of its implementation, it appears that this is an improper provision that constitutes a violation of the prohibitions that apply to the company and establishes grounds for imposing a financial sanction. It was held that the clause contravenes the agreed order, the instructions to a monopoly holder regarding the "aggregate target discount" (i.e., a discount given for the achievement of a sales target of a number of products marketed by the company, including "Coca-Cola") and in the matter of binding (i.e., a discount given to the customer for the purchase of "Coca-Cola" if he purchases from the company other products marketed by it); the terms of approval of the merger; and section 29A of the law. On the other hand, the section does not contradict the provisions for a monopoly holder regarding exclusivity, but this determination does not justify a change in the scope of the sanction. Alongside the aforesaid, it was determined that there was no reason to exhaust the aggravation due to circumstances relating to the company's conduct in relation to the violation of the specific provisions imposed on it. This is because the agreements in which the clause was included had been before the Authority for years and the company was not asked to cancel it. Therefore, the severity of the sanction imposed on the company was reduced to 15 percent of the amount of the "base sanction", instead of 30 percent.
- It was held that the main examination of the potential harm to competition is focused on the wording of the clause, and on the contractual remedies it establishes for the company in cases of diversion of demand by its customers to a competing company. In the meantime, the company's argument was rejected that this is a standard clause in a company in which a discount method based on the scope of the purchase from the company is used, and that it is not a tool to prevent the diversion of demand to competitors. It was held that, contrary to the company's claim, the language of the clause does not limit itself to cases in which the customer is acting in bad faith. In other words, cases in which a customer makes purchases on a minor scale in order to evade a refund. Dealing with these cases even includes special clauses in the agreement, which makes it difficult for the company to claim that this is the purpose of the clause. It was held that the expansive interpretation of the language of the section was even implemented concretely by the company's employees in the framework of the "H. who dealt with a customer who diverted orders for beverages other than "Coca-Cola" to a competing beverage company. It was also noted that the company itself recognized the use of the practice in its response to one of the hearings. Nor was it found in the company's argument that the fact that no claim was raised against the clause in previous examinations conducted by the Authority constitutes positive confirmation of its validity, and this does not negate the raising of a claim with the passage of time where a defect was identified. In the meantime, the company's arguments that the late identification shows that this is a weak claim, which was not identified by the agreed parties, amounted to delay and unfairness on the part of the Director-General. In addition, the argument that in these circumstances, the decision to impose a financial sanction instead of choosing a less harmful means amounts to an abuse of authority. This is when the authority did not give any reference, let alone a positive reference to the content of the clause, which could have created the impression that it is a kosher clause. Finally, the height of the sanction will be examined. It was found that the amount of the "base sanction" that was determined is reasonable in view of all the data, including the prevalence of the condition, the anti-competitive potential, and the fact that it is set at half of the maximum amount under the law. It was found that the ranking made between the various violations of which the company was accused was appropriate and logical. In this framework, the company's argument that no explanation was provided for reducing the amount of the "base sanction" between the two hearing letters, was rejected, while the focus was directed to examining the current sanction, which was found reasonable, and not to examining the discretion of the Director-General in this matter. However, as stated above, the aggravation of the "base sanctions" that was made due to circumstances relating to the company's conduct in relation to the violation was reduced. This is due to the weight given to the fact that over the years no direct demand has been directed at the company to cancel the clause.
- With regard to the provisions of the agreed order, it was determined that the clause of the agreement period was to establish a permanent deterrence against purchases from competitors, but the clause violated clause 1 of the agreed order prohibiting the company from taking steps to deter a customer from exercising his desire to purchase a competing product. This determination was based on the rejection of the company's claim that the purpose of the clause was to enable it to deal with cases in which a customer acted in bad faith in reducing purchases. In this regard, the company's argument was also rejected that in order for a violation of section 1 of the agreed order to take place, concrete interest was required on the part of a customer in response to which the company acted, and this was not proven. It was held that such an interpretation of the order, which assumes that it permitted a permanent threat to be placed on a customer in advance and sought to prohibit a threat only if interest was formed, is unreasonable. In this situation, if the constant threat is effective, there will be no interest at all, and the instruction will be emptied of content. The company's argument that there is no basis for its customers to interpret the clause as embodying a threat.
- As for the provisions for a monopoly holder and the prohibition on entering into arrangements that include exclusive agreements and links. It was determined that the company did indeed violate the provisions with respect to link agreements, by in fact conditioning discounts on the purchase of Coca-Cola products on the purchase of other beverages that it markets. This is because according to the clause of the agreement period, a decrease in purchases by a customer for the purpose of moving to another company allowed the company to cancel the entire agreement with him. This means creating a dependency between the discounts in the agreement and the customer's refusal to divert demand for the purchase of products from competitors. In this context, the company's argument was rejected that if the Director-General had wanted to limit the binding to the scope of an overall engagement (and not just to limit the binding between concrete products), it would have done so explicitly, as it has done in other cases. Instead, it was determined that it is unlikely that the clause will prohibit conditioning a discount on the purchase of a specific product, but not conditioning it on a variety of the company's products that are not specific, and that the instructions to which the company referred are later than those given in its case, so that nothing can be deduced from the refinement of the wording. However, as stated, the court accepted the company's arguments regarding the obligation to refrain from exclusive agreements and ruled that no violation of this obligation was found. This is because, according to the wording of the clause, the threat inherent in it will be formulated only in the event of a "significant reduction" in purchases from the company, and a reduction that is not such will not lead to any sanction. However, as stated, even though the company's appeal was accepted on this point, the tribunal did not find that this could change the amount of the sanction, given that in any case there was a violation of the instructions to a monopoly holder. In addition, the Company's arguments regarding the violation of the provision relating to the assumption of an aggregate target (as detailed in paragraph 11 above), according to which the volume of the customer's purchases in previous years does not constitute a personal aggregate purchase target for the purpose of examining this breach. It was determined that according to the clause of the term of the agreement, the entire agreement depends on the scope of the purchases in a manner that violates the aforementioned provision.
- With regard to the terms of the approval of the merger, it was determined that the prohibition in these terms is sweeping and applies to any link between the discount rates and "Coca-Cola" and Neviot products, and therefore the clause of the term of the agreement that creates a connection between the two violates the terms of the merger.
- With regard to section 29A of the Law, which deals, as stated, with the abuse of his position by a monopoly holder, the main arguments discussed by the Tribunal revolved around the question of whether the clause of the period of the agreement embodied "libels". In other words, was it sufficient to deter customers from purchasing products from the appellant's competitors, and to create difficulties for competitors and to weaken them in a manner that is liable to reduce competition or harm the public? It was held that when the clause anchored the possibility of a complete and immediate cancellation of the agreement due to a reduction in purchases, and not only the possibility of reducing discounts, it embodied the "element of libel" for harming competition. Following this determination, the company's claim that in the absence of evidence that customers felt threatened, there was no breach. This is because there is no need to prove actual harm and probable harm is sufficient, and the creation of individual shopping goals according to the clause of the agreement period may substantially reduce the possibility of competitors competing with the company for certain products. As stated above, even elements in the company itself insisted on interpreting the clause as embodying the possibility of thwarting competition. The company's argument that the "element of libel" was not formulated because in practice the clause was not used, since it was determined that the absence of the use of the clause does not negate the threat inherent in it. In any event, this argument is relevant to the extent of the actual harm to competition and not to the question of the existence of the "element of libel."
- (-) Policy against parallel imports. The tribunal ruled that the provisions for a monopoly holder and section 29A of the Competition Law were indeed violated , but there was no violation of the agreed order and section 29 of the law. Accordingly, the total financial sanction was also reduced.
- It was held that the company's argument that the procedure was directed only against illegal parallel imports should not be accepted, because the procedure does not indicate that it was limited to that only. In addition, the argument that the illegality of the parallel imports was "obvious" was rejected, so that no specific distinction was required in the framework of the procedure. The fact that the retrospective knowledge that parallel import products were not lawfully marketed does not remedy the defect in the procedure, whereas at the time of its determination, its members were of the opinion that it was quite possible that it would be a legal import. The company's argument that the procedure is protected in light of the fact that it was formulated on the basis of legal advice was rejected. It was determined that it was not at all proven that the procedure was approved after receiving the consultation. Even if it were proven, it is reasonable to assume that responsible counsel would inform the company of the difficulty that arises in the circumstances of the case. With regard to the reservation mentioned in the matter of products with Hebrew inscriptions, in respect of which the company's employees were instructed to block the supply of products only after a sample of the product was provided, it was noted that this was not a provision to verify illegality, and the procedure did not even hint that an examination of the product would be conducted before the supply was stopped. In addition, the procedure does not state that under these circumstances, employees will refrain from informing the customer that the products in their possession are illegal. The argument that the company was not required to conduct an inquiry into the illegality was also rejected because its characteristics were visible so that it was clear to all. In this context, it was determined that it was not possible to foresee at the time of writing the procedure that the illegality of the marking would be prominent in each and every case, and therefore the procedure should have included an investigation mechanism. Moreover, in practice, there was also parallel imports, the illegality of which was not clear to all. It was held that the wording of the procedure, which was proven to have been implemented in the field, shows that the procedure conveyed a message against parallel imports while threatening the difficulties that the company would cause to those who did so. There is also no relevance to what the customers understood from this message, and it is sufficient that the message was heard by the company's employees to determine that it was conveyed. The procedure even instructed the company's employees to conduct a pre-blocking persuasion conversation. The company's claims that no supply interruption was proven in the specific case mentioned were also rejected.
- With regard to the provisions of the agreed order, the court ruled that since there were no legitimate products for purchase during the relevant period, the provision of the order, which deals with taking steps to deter a possible legitimate purchase, was not violated.
- With regard to the provisions for a monopoly holder, it was determined that the provisions prohibiting exclusive agreements and conditioning the supply of products on the purchase of the company's products were violated. In the meantime, it was determined that the procedure and its implementation constitute a violation of Provision 1 of the Instructions to a Monopoly Holder, which 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 of Provision 2, which prohibits entering into "exclusive agreements" defined as "agreements between the Company and a customer, both directly and indirectly, whereby the customer will purchase only the Company's products and will not purchase a beverage or beverages that are not marketed by the Company...". It was determined that the wording of the provisions indicates that the policy or general guidelines given to customers regarding the harsh consequences of parallel import marketing are sufficient to lead to a violation of the provisions. The company's argument was also rejected that since it is not an obligation to purchase beverages only from the company, since the procedure does not contain a sweeping prohibition on purchasing from alternative brands, there was no violation of the instructions. Accepting this claim means that the company has the option to exclude beverages as much as it wants, only to enable the marketing of any brand, no matter how negligible, of a competitor. In any event, the provision regarding exclusive consents, as defined above, instructs that the purchase of a beverage that is not marketed by the company should not be prohibited.
- As to the provisions of the law, It was determined that there was no violation Section 29 to the law prohibiting unreasonable refusal to supply a product that is monopolized. The Director-General's determination regarding the violation was based on a specific case of cessation of supply, in which the products held by the customer were not from a legal parallel import and were not even proven to be legal, so there was no reason to determine that the refusal to supply to that customer was unreasonable and prohibited by Section 29 to the law. However, it was determined that he had indeed violated Section 29A to the law, which stipulates that a monopoly holder shall not abuse his position in a manner that may lead to harm to the public or reduce competition in business. It was determined that the procedure conveyed an unacceptable message to those interested in parallel imports, both legal and illegal, while threatening severe sanctions. This is because the fact that there was no legal parallel import in practice does not cure the violation. This is because the examination is not done retroactively and that legal parallel imports could have developed in real time, and the company directed the behavior of the marketers in this regard.
- With regard to the financial sanction, it was determined that the basis that was determined was reasonable and appropriate in all the circumstances. It was emphasized that most of the severity and potential harm of the procedure are assessed in advance, from the perspective that it has not yet been known that legal parallel imports will not develop during the relevant period. In any event, the Commissioner has already included the fact that in practice the parallel imports were illegal to the extent of the sanction she imposed. The company's claims regarding discrimination and selective enforcement in relation to other cases in which no sanction was imposed on actions against parallel imports were also rejected. It was clarified that the cases were not identical. In one case referred by the Director-General, there was no such threat as the one posed by the company, and in the second, there was not enough evidentiary material. In addition to the aforesaid, and in view of the Court's rulings regarding section 29 of the Law and the Agreed Order, the aggravation of the financial sanction due to a violation of specific provisions was reduced to 10 percent instead of 20 percent.
The Proceeding Before This Court
- As aforesaid, mutual appeals were filed with this court against the judgment of the Competition Court. On September 3, 2025, we held a hearing, heard the arguments of the parties, and at the end we recommended to the parties what we recommended. On September 17, 2025, the company announced that in light of the court's comments at the hearing, it was leaving its appeal only with respect to the chapters relating to the strength of the evidence and proof (chapter A.2 of the appeal); to the clause of the period of the agreement (chapter 2 of the appeal); and the policy against parallel imports (Chapter 7 of the appeal). The Commissioner announced that it was considering the Respondent's appeal, which was permanently concerned with the parallel import chapter. Therefore, the main arguments of the parties relating only to the issues that remain for discussion will be presented.
The parties' arguments
- The company argued with regard to the strength of the evidence and the proof that the tribunal erred in accepting the position of the Commissioner that proof of the balance of probabilities is sufficient for the purpose of imposing a financial sanction. This is in view of the standard of reasonable doubt customary in European law from which the sanctions regime in competition law will be "imported" into Israeli law. The balance of probabilities standard is suitable for a civil lawsuit due to a lack of pocket money between two equal parties, but not for the imposition of a penalty in the form of a financial sanction of huge sums. In addition, it is not constitutionally acceptable that the standard of proof in the various laws granting the authority to impose financial sanctions will be a balance of probabilities, when it is a matter of punishment accompanied by social condemnation and violation of basic rights. The issue of the strength of the evidence is of great weight in light of the fact that various administrative authorities have been authorized to impose financial sanctions in recent years. Alongside the aforesaid, it was argued that in any event, the Commissioner did not even meet the threshold of proof of the balance of probabilities.
- With regard to the determinations regarding the clause of the period of the agreement, it was argued that the tribunal erred in not addressing the question of whether the company's customers felt threatened by the inclusion of the clause in the agreements, and instead ruled that the inclusion of the clause would create a threat to customers based on the "element of libel". The court erred in placing on the company the burden of proof to deny the existence of the "element of libel", while the burden is on the supervisor to prove that there are libels to make the customers feel threatened. The court erred in sufficing with the absence of a positive finding that they were not threatened, and the authority should have conducted a further inquiry into the matter. Furthermore, the fact that customers did not report a sense of threat is a positive finding for the absence of the threat. The court also erred when it relied on the language of the clause in determining the existence of a potential harm to competition. The language of the section is not clear, and the long time it took for the authority to discover the defect in the clause is sufficient to clarify it. In any case, language is not enough, and the question of how the customers saw their situation must be addressed. In contrast to the ruling in the judgment regarding the manner in which customers might have understood the clause as a threat to cancel the agreement, in the specific case mentioned on the subject, the "H" case. ", the client was not at all concerned about the cancellation of the agreement. In addition, there is no evidence that other customers understood the clause as claimed by the Director-General. Contrary to the ruling, the company did not recognize the use of the practice of threatening to cancel the agreement in the framework of the response to the first hearing letter, and its employees did not use the said practice at all. With regard to the sanction imposed in respect of the clause of the period of the agreement, the company argued that the tribunal erred in determining that there was room to impose the sanctions despite the fact that the regulator itself did not find anything wrong with the clause for 15 years; The tribunal erred in determining that it is not supposed to and cannot trace the discretion of the Commissioner in determining the financial sanction, while ignoring significant questions on the subject; There was no room to accept the determination of the sanction based on the creation of a "hierarchy" between the various cases, since the considerations due to each sanction are required to stand on their own; The tribunal should also have set a "minimum sanction", as the Commissioner did in another determination in Gedera that found that there were no libels to harm competition; and he should have reduced the full aggravation that was taken in light of the violation of individual provisions. The Commissioner had no authority to increase the sanction rate in light of the high sales turnover. Although this consideration is included in the Director-General's statement regarding the guiding considerations for determining the amount of the sanction, it is not included in the considerations set forth in the law, and it is null and void.
- With regard to the policy against parallel imports, the court erred in determining that the procedure was aimed at all parallel imports and not only at illegal imports, without conducting an inquiry with the company's employees and without questioning who served as the company's VP of sales at the relevant time. The language of the procedure should have been read against the background of the intention of its drafters and against the background of its period context - and in the period in question there was no legal parallel import. Moreover, if necessary and in accordance with the changing reality, the company could update the procedure. The requirement that the procedure specify how to act in a possible future situation is unreasonable. In addition, the procedure did not convey to the retailers a sweeping message regarding the prohibition of possessing products from parallel imports without regard to their legality, and the court should have clarified how those retailers understood the procedure. The company clarified that the messages were conveyed to those who marketed products in parallel imports that are illegal, so there is no room to interpret the script and the message of the procedure in detachment from this information. In particular, the tribunal erred in determining that the provisions of the procedure and the script of the conversation constitute a violation of provisions 1 and 2 of the Instructions for a Monopoly Holder. The court also erred in examining the "element of libel" without taking into account the actual impact on the competition. It was further argued that when the tribunal ruled that there was no violation with regard to the refusal to supply beverages, it was at least appropriate to substantially reduce the base amount of the financial sanction. The reduction of the sanction would have been necessary even in light of the fact that the parallel import procedure was canceled even before the Commissioner approached the company on the matter.
- In the Director-General's response, it was argued, inter alia, that it was rightly clarified in the judgment that the standard of proof in our case is administrative and not criminal. With regard to the clause of the period of the agreement, the court was correct in examining whether the clause could have led to a threat to customers, when the relevant test is the "element of libel" for harming competition and not actual harm. The late discovery of the defect stemmed from the fact that only during the investigation and based on the company's response on the matter, was the Authority exposed to the use made of the section. In addition, there is no need for customers to understand the threat independently from reading the section, as its meaning is expressed in the context of the use made of it by the company's employees, who are the ones who draw the customers' attention to the company's interpretation of the section. Contrary to the company's claim, the client in the case of "H. Fear of canceling the agreement. In any event, the fact that no agreement has been cancelled does not prove that there was no threat, because an effective threat will bring about this very result. Contrary to the company's claim, the court certainly traced the discretion in determining the sanction, and the statement on the matter related to the discretion behind the changes between the hearing letters. The court took into account the company sufficiently to reduce the aggravation, and this is a reasonable reduction in the circumstances of the case, and there is no justification for further reduction. The standard of the examination at the stage of determining the sanction is the standard of the "element of libel" for the harm to competition and not the standard of actual harm, and the auxiliary tool of a retrospective examination is not appropriate for the circumstances of the case. It was argued that the aggravation due to a particularly high sales turnover was appropriate and in accordance with the law.
- As far as the policy against parallel imports is concerned. The Director-General has upheld the Tribunal's ruling regarding the violation of Section 29A of the Law and the provisions for a monopoly holder. In the meantime, it was argued that the company's claim that the procedure was directed only against illegal parallel imports should be rejected. The company itself confirmed that it anticipated the possibility of legal imports, and even explained how the procedure would include a mechanism to remove the blocking of supplies and stop activity against legal imports, but such a mechanism was not included in the procedure. According to the procedure, the notice to the customer preceded any inquiry into the illegality of the products, and at that time there were products that were deemed to be legal. In the years in question, there was also an attempt to establish legal imports that did not mature. It was argued that there was no room to investigate how the customers understood the message that was conveyed from the script of the conversation; that the script of the conversation constitutes a stipulation and consent in a manner that amounts to a violation of provisions 1 and 2 of the Monopoly Regulations; that "exclusive consents" also include agreements whereby a customer will refrain from purchasing a beverage that is not marketed by the Company; that the company's argument regarding the need to examine the harm to competition in practice retroactively should be rejected; that there is no reason to reduce the amount of the financial sanction due to the rejection of the violation of section 29 of the Law and section 1 of the agreed order - both because this determination does not detract from the wrongdoing of the company's actions and because the prohibition in section 29A of the Law, in which case it was determined that there was a violation, is much more severe than the prohibition in section 29 of the Law. In addition, there is no room for leniency with the company due to the fact that it has abandoned the procedure. The Director-General's determination that the violation ended in June 2014 was based on the omission of the exam from the employees' exams, and there is no evidence that the company instructed its employees to stop using the procedure or announced that it was invalid. In addition, the abandonment of the procedure coincided with the opening of an investigation against the company, which placed it under a magnifying glass, so that the company should not be considered to have withdrawn its hand from using the procedure on its own initiative.
- 00In her appeal, the Director-General further argued with regard to the determinations regarding parallel imports, that the Tribunal erred in determining that the Company did not violate Section 29 of the Law and Section 1 of the Agreed Order in its policy, and that as a result of the aforesaid, the Tribunal reduced the severity of the financial sanction. With regard to the unreasonable refusal of a monopoly holder to provide a monopoly asset or service (section 29 of the law), the Commissioner argued that the tribunal erred in not addressing the condition of supply to all customers and examined only the individual case of the customer whose supply was blocked. In any event, the court should have examined the nature and content of the stipulation and not focused on the legal status of the parallel import products. This is especially so, when even the condition of a supply on an unreasonable or anti-competitive condition constitutes a violation of section 29 of the Law, and not only an actual refusal. The stipulation itself is forward-looking, and the very fact that it is heard by a customer, without being classified as an illegal import, constitutes a breach, and this also has implications for the individual case that is being examined. With regard to the agreed order, the Director-General argued that customers should not be attributed a desire to purchase illegal products. Therefore, the focus is on the customer's desire to purchase a product that is not the company's or the legal status of that product; that clause 1 of the agreed order is forward-looking, and this is also reflected in the judgment itself, where it was determined that the clause applies even in cases where the company takes steps in advance that can affect the customer's will. Accordingly, the Director-General requested the full restoration of the financial sanction imposed for this chapter.
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