Even someone who joins as a party to an ostensibly restrictive arrangement, that is, without the intention of fulfilling it, will be considered a party to the arrangement and will bear responsibility for the offense. The reason for this is that such a party is also liable to support the arrangement and bring the other parties to be part of it and limit themselves accordingly in a manner that may harm competition. In this context, it was held that "even a person who joins the restrictive arrangement for the sake of appearance only, may, in certain circumstances, cause the strengthening of the restrictive arrangement and harm competition, since it causes the other partners, who do not act on appearances, to rely on the fact that he is also a partner in the restrictive arrangement, and thus he encourages them to limit themselves... It follows from this that even a person who joined an arrangement that is restrictive on the face of it and without the intention of implementing it may bear criminal liability under the Restrictive Trade Practices Law" (Borowitz at paragraph 94: and see also: Criminal Case (Jerusalem District) 49529-12-11 State of Israel v. Ben Dror at paragraph 20 (April 30, 2017)).
- The offense is consolidated where a person was a party to a restrictive arrangement that was not duly approved and that he was not granted a temporary permit or exemption. All of the arrangements attributed in the indictment were not requested and no approval, temporary permit or exemption was granted.
The Mental Element
- The mental element required for the consolidation of the offense of a restrictive arrangement is criminal thought (Borowitz in paragraphs 92, paragraphs 19 and 3423 of the Penal Law, 5737-1977). In other words, "the actual awareness of the perpetrator of the offense of the physical nature of his actions and the existence of the circumstances in which they were committed" is required (Borowitz case there and at paragraph 96, section 20(a) of the Penal Law). No intention or purpose is required to harm competition, and no intention is required to act to implement the arrangement in practice (Borowitz at paragraph 94). In this context, the "general presumption of awareness" applies, according to which "a person is generally aware of the significance of his behavior, in terms of its physical nature, the existence of its circumstances and the possibility of causing the natural consequences that may arise from it" (Criminal Appeal 8150/05 Hasson v. State of Israel at paragraph 14 and the reference there (6 March 2007)). As stated above, the mental element can also exist in a party that has joined the arrangement ostensibly without the intention of implementing the arrangement in practice, and it is sufficient for a party to the arrangement to be aware that one of the parties to the arrangement is limiting itself (Borowitz at paragraph 94).
In the following arrangement within the framework of the absolute presumptions set forth in section 2(b) of the Competition Law, there is no need to prove actual awareness of the potential harm to competition, and it is sufficient to be aware that this is a restriction relating to one of the matters listed in section 2(b) of the Law (the Borowitz case at paragraph 92).