However, this does not establish, even remotely, a basis for defense arguments or selective enforcement. IBM operated in the vertical link. She approached the supervisor in advance with exemption requests and with the aim of legally regulating her activity with the suppliers. IBM received exemptions both in the period preceding and in the period following the settlements that are the subject of the indictment. IBM was not a party to the horizontal price coordination between the suppliers. No evidentiary basis was laid for her involvement in any of the coordination arrangements that are the subject of the indictment (and concrete arguments raised in this context were discussed in the course of the hearing of the charges – see, for example, paragraph 735 above). The allegations that IBM directed, initiated, or created the privileged arrangements were also not supported by evidence. In any event, there is no basis whatsoever for comparison or claim of selective enforcement on the basis of the aforesaid. This, even if in a certain period of time and for a reason that was not clarified, IBM did not have a valid exemption for the special mechanism in hand.
- The defense further argued in connection with the exemption decisions that IBM behaved like a monopoly and that by granting a special hand to a certain supplier, it abused its position in a manner that might reduce competition (for example, paragraphs 41-45 of Harel's summaries). The defense referred to section 29a(b)(3) of the Competition Law, which deals with the determination of various terms of engagement for similar transactions that may give a certain supplier an unfair advantage over its competitors. It also referred to the comment made by the Competition Commissioner in the exemption decision from the end of 2014 that the exemption decision does not exempt from the rest of the provisions of the Law, including the rules that apply to a monopoly holder (ibid.). In a close context, it was argued that the representation that IBM made to the Director-General prior to the 2001 exemption request regarding its limited market share was incorrect (paragraphs 35-36 of Harel's summaries). Against the background of the aforesaid, it was argued that it is possible that if IBM had acted lawfully, "the situations that led to the indictment would have been avoided" (paragraph 43 of Harel's summaries).
No factual basis was laid for the claims, including the existence of the elements required for abuse of status in the circumstances of the case. Some of the claims are speculative. Either way, and this is the main thing, even if the special mechanism in the hand was able to affect the intensity of the competition between the suppliers in certain cases, it would not have eliminated it. In any event, the claims do not change the claims, establish a defense, or legitimize or justify price coordination between the suppliers.
- Therefore, the defense's arguments should be rejected on the basis of the exemption decisions or in connection with them.
IBM's conduct and the special handheld mechanism did not rule out the feasibility of competition between the suppliers
- The defense has argued more than once that where IBM gave one of the suppliers a special hand and priority, competition was extinguished and there was no longer a feasibility of competition (e.g., paras. 35-37 of the Wii Summaries). It was argued that the gap between the purchase price of the preferred supplier and the purchase price of other suppliers was such that it did not allow competition with the prioritized supplier (for example, paragraphs 73-74 of Harel's summaries). In the absence of the feasibility of competition – this is the argument – in any case there was no price coordination between the suppliers in order to create a concern of harm to competition.
- We have seen above that these claims, which rely on the special mechanism in hand, are not relevant to a significant part of the charges.
- In any case, the claims should not be accepted.
- On the legal level, it is sufficient that we are dealing with horizontal price coordination between competing suppliers in order to establish a conclusive presumption of potential harm to competition.
- Beyond what is required, the evidence shows that even from a factual point of view, the claims should not be accepted. In practice, there was a possibility of competition, and in any event, the conclusion is necessary that the price adjustment arrangements made in the charges in the indictment created libels to harm competition.
- We mentioned above that competition is the realm of uncertainty. It is the uncertainty that incentivizes each of the competitors to give the best offer. It appears below that this uncertainty also existed where one of the suppliers received a special handshake and priority, both from the perspective of the prioritized supplier and from the perspective of the other suppliers, and that even in these circumstances there was concern and competitive tension.
- The evidence showed that in practice, there were cases in which even though one supplier received priority from the manufacturer (IBM), another supplier competed and won the project. In fact, in such cases – moreover: the fear of the possibility of their occurrence – is sufficient to drop the ground under the defense's arguments and to show that there was a possibility of competition, that there was a competitive concern, and that the price adjustment arrangements were intended to remove this concern (and this is even if it is reasonable to assume that in most cases the preferred supplier won, as assumed, for example, Orshitzer, at p. 2452, paras. 3-4).
We will briefly refer to examples of such cases: