As for the mental element, it was determined that the mental element required in the offense of a restrictive arrangement is the actual awareness of the perpetrator of the offense's physical nature of his behavior and the existence of the relevant circumstances, including awareness of each of the four components and that he is a party to a restrictive arrangement and the lack of appropriate "training". When there is an absolute presumption under section 2(b), there is no need to prove the potential harm to competition and the awareness of the perpetrator of the offense, and it is sufficient to prove awareness of the relevant issue of restraint listed in section 2(b). The offense of the restrictive arrangement is not an offense of purpose and does not include an intention to achieve the purpose of the engagement and to carry it out (see: Criminal Appeal 207/20 Asher Ophir v. State of Israel - Antitrust Authority [Nevo] (03.05.2022); Additional Criminal Hearing 5189/05 Ayalon Insurance Company inTax Appeal v. State of Israel [Nevo] (April 20, 2006).
- In 2023, the Competition Authority published a "Statement of Opinion 1/23" on the subject of Vertical Price Dictation Arrangements (RPM). The statement clarifies that arrangements in which a supplier sets a minimum price or a fixed price for the distributor are liable to harm intra-brand competition, i.e., competition between distributors of that supplier for the price of the product and the end customer. This statement is directly relevant to the case before us. The defendant, as a supplier, demanded that the plaintiff, as a distributor, advertise its products at the minimum price set by it. This is precisely the situation to which the statement of opinion relates. The statement clarifies that such arrangements are liable to harm intra-brand competition, as they prevent the distributor from competing for price with other distributors of the same supplier. In this case, the defendant supplied its products to a number of distributors, and the demand to publish uniform minimum prices prevented price competition between them. This is precisely the harm to competition that the communiqué warns about. Moreover, the Statement makes it clear that the "free-riding theory" cannot be relied upon to justify such arrangements, unless the supplier proves that specific conditions exist to justify it. In this case, the defendant did not attempt at all to prove the existence of such conditions, and did not present an economic justification for the settlement.
- During that period (2015-2016), a decision was made by the Competition Authority in the matter of "Argentols" (Appendix 1 to the plaintiff's summaries), stating that the coordination of minimum prices constitutes a restrictive arrangement.
- which distinguishes between advertising and sale; The defendant claims that it only demanded "not to advertise" a low price, but did not prohibit selling at such a price. This argument should be rejected for the following reasons:
In practice, the requirement is the same. A consumer who has viewed apublished price and arrived at the store, expects to receive the same price. Advertising one price, and selling at another price, is misleading the consumer and is not realistic.