On the factual level, we saw above that even in those cases in which one of the suppliers was given priority or a special offer by hand – even ignoring the fact that no basis was laid for the fact that this was the case in a significant part of the charges – this did not negate the feasibility of competition (see at length at paragraphs 1071-1086 above). Nor is there any basis for the claim that the horizontal price coordination between the suppliers and the defendants is a "direct result" or a result of the exemption granted by the Commissioner to IBM. Even if, in certain circumstances, the conduct of the manufacturer (IBM) or the prioritization that had an impact on the intensity of the competition could not have created a necessity for price coordination between the suppliers. Each of the suppliers could (and should) compete independently to the best of its ability or independently choose not to compete. Either way, there is no justification for coordinating the bid prices behind the client's back. The coordination arrangements and the coordination of bid prices in the charges discussed are horizontal arrangements, whose chains are "naked," which have no legitimate justification, have no pro-competitive economic value, and are intended to remove and thwart competitive concerns and uncertainties. There is no justification for this and in any case there is no room for their examination under the provision of section 2(a) of the Competition Law. In any event, as the allegations of harm to competition of such restrictions of price coordination for a competitive proceeding were ruled, it is clear and self-evident (the Wall case, in paragraphs 8-4), and so too emerged from the evidence in the proceedings of the Communications Corps that is the subject of the charges before us.
Harel tried to find support for her arguments in the Supreme Court's judgment in the Shufersal case (see also Wee's argument, for example, at para. 630 of her summaries). However, what is stated there does not benefit the defense. In the Shufersal case , the position was expressed that a distinction should be made between vertical arrangements and horizontal arrangements, that as a rule, careful use should be made of the application of section 2(b) of the Competition Law to vertical arrangements , and that with the exception of particularly exceptional cases, such vertical arrangements – which sometimes have a competitive advantage – should be examined under section 2(a) of the Competition Law (ibid., in paragraph 48, and see the discussion in paragraphs 71-88). In that case, it was found that the vertical arrangement discussed there – between the retail chain and the suppliers – clearly falls within the scope of the exception, because it is intended to limit competition with the direct retail competitor, because its effect on the horizontal level was immediate, and therefore it falls within the scope of absolute holdings (ibid.). From this we cannot learn for our purposes. The opening that was allowed there to apply the absolute presumptions to vertical arrangements as well does not indicate that there is room for an inverse opening not to apply the absolute presumptions to clear horizontal arrangements for coordinating price quotes between competitors such as those before us. In our case, we are not dealing with a horizontal effect of a vertical arrangement, but rather with direct horizontal price adjustment arrangements between competitors. With respect to such horizontal arrangements, it was held that "the scope of application of the absolute presumption is broad and unqualified in a way that obviates the need to conduct an individual examination of each arrangement on its merits" (Criminal Appeal 207/20 Ophir v. State of Israel, at paragraphs 12-13 of the judgment of the Honorable Justice D. Barak-Erez (May 3, 2022)) and that when we are dealing with horizontal arrangements, "there is no doubt as to the applicability of section 2(b) of the Law" (Ben Dror case) in paragraph 27). This is true even if, in some cases, there was conduct in the vertical link in the background, which might have given preference to one of the competitors or projected on the intensity of the competition on the horizontal plane. Even given the above, there is no justification for fixing prices and thwarting competition.