In its summary, the defense also referred to case law in which it was proposed to interpret the provisions of section 2(b) of the Competition Law as a purposive interpretation that may limit the scope of the application of the absolute presumptions in order to prevent their interpretation of arrangements that have no impact on competition or any potential for harm to it (e.g., Civil Appeal 3700/98 A.M. Haniot (Jerusalem) 1993 in Tax Appeal v. Jerusalem Municipality (17 February 2003); Appeal of Petition/Administrative Claim 6464/03 Israel Land Appraisers Association v. Ministry of Justice (16 February 2004)). However, this ruling revolves around vertical arrangements that have nothing between them and the horizontal bid price coordination arrangements between us.
- In its summaries, Wei argued that the BLA proceedings in our case were not competitive proceedings, but rather "tailor-made" BAM proceedings, "acts of deception", competition proceedings "on the face of it", that there were "fictitious" price quotes at the request of the client, when the client asked for fictitious bids for appearances only. In this situation – this is the argument – there is no competitive proceeding, it is not possible to harm competition that does not exist, and there is no application to the absolute presumption. Nor is it a "price that will be demanded or paid" since it is a price ostensibly at the request of the client.
However, we saw above, in the course of the hearing of the concrete charges and in relation to the IDPs that are the subject of the indictment, that the civil appeal officers did not know about the coordination of the prices of the bids between the suppliers and the defendants, that the civil appeal officers did not seek to receive vain-coordinated offers, but rather genuine offers, and that the coordination of the price proposals was done behind the backs of a civil appeal (see, for example, paragraphs 915-916 above; this was also the case with respect to the members of Alop in the twelfth charge and with respect to the members of the Mapi in the thirteenth charge). This is enough to undermine the basis for Wee's claims. The repeated arguments that there was no possibility of competition, beyond the fact that they were rejected, are capable of undermining an absolute presumption and emptying it of its content (see and compare: the Ariel case at paragraph 20).