In addition, the tribunal also relied on the investigation of another client who testified that he had received a similar threat, and that the relevant case in his case did indeed take effect before the commissioner's authority to impose sanctions came into effect, but it does indicate the nature of the section. In this context, I also saw no reason to intervene in the Tribunal's determination that preferred the testimony of that customer to that customer's testimony over that of a sales manager on behalf of the company who denied the customer's statements.
- To this, it should be added that the language of the clause creates a dependence in practice between meeting an individual acquisition target and the existence of the agreement with the company. This fact is important given that the trade agreements that were adjusted according to an individual purchase target were generally signed with customers with a large volume of purchases, in a way that could have reduced the possibility of competitors to compete in the marketing of certain beverages. In other words, the policy of the clause could have affected not only the customers but also third parties, including the company's competitors.
- It emerges from the compilation that the factual determinations were examined extensively and were properly established both in the framework of the Director-General's determination and in the framework of the judgment, and there is no room to interfere with them. This is especially so in view of the weight reserved for the rule of non-intervention in the examination of judgments of the Competition Tribunal. As to the company's argument regarding the burden of proof, once the Commissioner based its determination as aforesaid, the burden of proving the claim that the clause could not have significantly affected competition shifts to the company (see: Ashdod Port Case, para. 44; Sections 50, 13(a) and 43(c) of the Law; explanatory notes to the Law, at p. 244), and it did not lift this burden.
- As to the financial sanction imposed on the company in this chapter. I accept the Tribunal's determination that the time the claims were raised by the Authority does not legitimize the section or create a representation that it is a valid clause, when the section itself was not clearly or in the discussion and no active representation was made on behalf of the Authority. Hence, contrary to the company's claim, there is also no justification for preventing the imposition of any sanctions or for the complete cancellation of the severity of the sanction that was imposed in light of the violation of specific provisions and its reduction in the judgment. The company argued that the court erred in determining that it could not trace the discretion of the commissioner in reducing the amount of the sanction. However, a review of the judgment shows that the tribunal conducted an independent examination of the amount of the sanction, taking into account all the data and the prevalence of the stipulation, and finding the amount of the "base sanction" to be reasonable. I also accept the Director-General's argument that this statement of the Tribunal was made in relation to the change in the aggravation that occurred only between the various hearing letters. Since I have found that the Tribunal's determination regarding the violations was based in itself, there is also no basis for the Company's claim that the Tribunal should have reduced the "base sanction" due to a lack of evidence. Finally, the company challenged the court's ruling that the Commissioner has the authority to increase the sanction rate in light of a high sales turnover, taking into account that this consideration is not included in section 50E of the Law. However, the language of the law does not indicate that the considerations listed in section 50E are a closed list, since the legislature determined that these are the considerations and circumstances that will be considered by the Commissioner "inter alia". In this regard, it was also explicitly clarified in the case of the Ashdod Port that:
"The amounts prescribed by law are the maximum amounts that can be imposed, so that in practice the amount of the financial sanction is adjusted to the circumstances of each case on its own merits, at the discretion of the Commissioner (Explanatory Notes to Amendment No. 13, at p. 241). Accordingly, section 50E of the Law further details a non-exhaustive list of considerations that the Commissioner must consider when determining the amount of the financial sanction" (ibid., para. 172; emphases are not in the original).