The petition further alleges flaws in the accuser's judgment in filing an indictment, instead of directing the proceedings to the administrative level, as was done in other cases, and in an alleged deviation from internal guidelines. These claims were also largely based on the claim of fictitious pricing proceedings. Beyond that, it is not possible to learn from the cases mentioned there as referring to administrative enforcement proceedings in our case. This is because the redirect to administrative enforcement there stemmed from evidentiary considerations, or because of the nature of the arrangements attributed there, including vertical arrangements, which are substantially different from the horizontal price coordination arrangements that are the subject of the indictment, which have no legitimate explanation or justification. Such horizontal coordination arrangements also do not fall within the scope of cases that will be enforced in administrative enforcement by means of a financial sanction in accordance with Statement of Opinion 1/12: The Antitrust Authority's Guidelines Regarding the Use of Financial Sanctions Enforcement Procedures to which the Defense referred (and see Chapter B, paragraph 1, in particular, paragraph 1(a) and 1(b) therein). Therefore, the arguments of deviation from internal guidelines in our case should also not be accepted.
The same is true of the other arguments raised in the petition.
Additional Arguments
The arguments for the non-applicability of the absolute presumptions and the applicability of the qualification of trivial matters
- The defense argued that in the circumstances of the case, the absolute presumptions in section 2(b) of the Competition Law should not be relied upon, and that these do not apply in our case (for example, paragraphs 14-27 of Harel's summaries, pp. 6999-7001 of oral summaries, paragraphs 50-57 of the Wii summaries). Alternatively, it was argued that in the circumstances of the case, the exception set out in section 34z of the Penal Law, which deals with trivial matters, applies (for example, paragraphs 816-837 of Harel's summaries).
- We will address these arguments.
- Harel's main argument is that the vertical arrangement of granting a special by IBM to the suppliers effectively neutralized the possibility of competition between the suppliers themselves, and that the horizontal price coordination between the suppliers in the charges in question is a "direct result" of the vertical arrangement that was exempted by the Competition Commissioner. In the absence of the possibility of competition, this is the argument, a purposive interpretation should be adopted, according to which there is no application to the absolute presumptions, which are intended for cases in which the liabilities of the harm to competition are clear, and in any case there is no room for conviction.
The arguments are to be rejected.