Therefore, it has been proven to the extent required that the online pricing outputs are admissible as evidence of the truthfulness of their content.
Has it been proven that a restrictive arrangement was made as attributed at the online pricing stage?
- At the outset, it should be noted that the evidence clearly showed that during the online pricing, there were many phone calls between Shachar and the other participants in the online pricing: Shohat, Gilad and Schnitzer. The call emissions from Cellcom indicate that during and near the online pricing, Shahar had nine conversations with Shohat (and three other conversations of 10 seconds or less); seven conversations with Gilad (and one more three-second conversation; three of the conversations were between the offices of Wei and Gilad); and three conversations with Wischnitzer (P/587, P/588). These are a large number of conversations that took place in a relatively short period of time, close to an hour, during which the online pricing continued. Among the participants in the online pricing, Shahar and Shochat testified at the trial. The testimonies indicate that the conversations related, at least to the pricing process, and that they took place in close proximity before bids were submitted, after bids were submitted, and possibly also during the submission of bids (P/240, paras. 537-538).
- This is conduct that creates a real difficulty. Such communication between competitors during a competitive proceeding, even if it is limited to the exchange of information, and even more so when it exceeds that, is liable to undermine the purpose of holding a competition, which is based on the submission of independent bids under conditions of uncertainty regarding the competitors' moves, in order to obtain optimal price quotes for the bidder, and amount to a violation of the Competition Law and a restrictive arrangement (see paragraph 729 below). However, this is not what was attributed to the defendants in the part in question, and this is not the question that must be examined. In the second part of the eleventh indictment, it was attributed to the participants in the online bidding that they were parties to a restrictive arrangement whereby Harel, EMET and Matrix would submit final bids higher than Wee's in order to enable Wei to win the online bidding. The question that needs to be decided is whether the existence of such an arrangement has been proven.
- Let us now turn to the examination of the evidence brought before the court in this context.
- At the outset, we note that no direct objective evidence, evidence that is not testimony – such as real-time email correspondence or a recording – was presented with respect to the content of the communication between the participants during the online pricing.
- Shahar's testimony and his words in the interrogation – With regard to the content of the communication between the participants in the online pricing, the accuser relied first and foremost on Shahar's testimony, following what he said in his interrogations with the Authority.
The accuser referred to what Shachar said in his testimony, according to which during the online pricing he spoke with the other participants about the pricing and the prices, and that the more he initiated the conversations, the more it was to make sure that the price of the offer he (Shahar) would submit would be the cheapest (p. 2879, paras. 10-11, paras. 15-16). Shahar did not retract his testimony in the interrogation that he and Schiffer tried to make sure that the other participants would not lower the prices so that there would be no profitability left in the transaction and that this was the reason for the conversations they had during the online pricing (P/2881, paras. 4-17, with reference to P/557(5), paras. 1044-1046; and see also P/557(5), paras. 1029-1032, where he referred to all the conversations in consolidation at his request and stated that he did not want there to be surprises during the online pricing and therefore spoke to the competitors and asked them not to lower prices. This is the reason for each of the conversations; p. 2881, paras. 11-14).