The defense's arguments in relation to Table S/1
- In their summaries, the defendants, Wei and Oshri Zeiger and Harel, pointed a significant part of their arrows at the table that was attached to the email message that Shachar sent after the meeting to the other participants, which was crowned "division of labor according to an agreement" (P/1). The defendants claimed that this is a table detached from reality, unfounded, that what is written in it in relation to the various projects is incorrect, and that there is no connection between it and what actually happened in reality. Against this background, they argued that this supports the claim that no arrangement was made for the division of the market, and that the arrangement as claimed was not implemented in practice.
We will examine these arguments.
- There is no dispute that the table relates to projects of civil appeal (e.g., Zeiger, P/222, paras. 637-640). The testimonies indicated that there were discrepancies between the details recorded in the table in relation to some of the projects and the developments that occurred in reality afterwards. This refers mainly to discrepancies between the company that actually executed a certain project and the company that was listed in the table as a "carrier" and was supposed to carry it out, along with other discrepancies.
For example: in the Anemone project, Wei won and not Triple C as listed in the table (Shahar, p. 3458, S. 1-4, P. 3340, S. 1-7, it was also argued that there was no logic in purchasing the carrier's equipment from the winner in a way that would zero the winning profits, even though it is possible that the amounts recorded in the table were intended to reflect the estimated amount that would be received by each of the companies involved in the project); Regarding the Sfard project, Shahar testified that the reference was to the Indra project (which will be discussed below in the framework of the second indictment relating to the coordination between the three companies), which Wei won several months Later, and not Triple C as recorded (p. 3340, paras. 12-24, p. 3458, s. 22 - p. 3459, s. 1; at the same time, the evidence showed that at the time of the meeting it was indeed Triple C to which Elta approached with a request for a price estimate in relation to the project, see N/3, so that the attribution in the table is ostensibly consistent with the state of affairs as of the date of the meeting); With regard to the Turkey project, Shahar confirmed that the reference was to the Tarp project (which will be discussed below in the framework of the sixth indictment relating to the coordination between the three companies), while automatically confirming that there is almost no connection between the table and what happened in reality, and that there is no logic in the amounts recorded in the table (p. 3340, s. 25 - p. 3341, s. 4, p. 3459, s. 9-11). However, the evidence shows that in practice it was Harel who won the said project in a manner that corresponds to its registration in the table as a leader (for example, P/33, in a financial scope of similar magnitude to that described in the table, even though at a later date than the date estimated in the table; and see also the testimony of Zeiger, p. 5328, para. 6, where he testified that there was a discussion of Harel's transaction); With regard to the PCG project, Shahar confirmed that the reference was to the Falcon project, in one place in his testimony he confirmed that the project was under the care of Harel and not of Wee as recorded (p. 3459, paras. 12-15), although in another place he did not rule out that there might have also been sales of Wee for the project (P. 3339, paras. 27-29; it is clear that in relation to this project, there was an error in the table of value from which it was mentioned both as the carrier and as the person from whom equipment was to be purchased. p. 3338, s. 30 - p. 3339, s. 21). In the telescope project , the Wii and not Triple C were awarded in various stages as listed in the table (P/200). The testimonies indicated that in the past it was Triple C that handled the project (Naveh, p. 209, paras. 6-15; and see also coordination correspondence from the beginning of 2010 between the three companies regarding "telescope spare parts" that Naveh links to the understandings, p. 94, paras. 13 - p. 95, para. 6 (P/10, not in the charges); See also the seventh charge according to which Harel made a high bid in order to allow Triple C to win. Shahar confirmed in his testimony that after Oshri moved from Triple C Levy, it was Wei who took care of him (p. 3343, paras. 10-22, p. 3459, s. 23 - p. 3460, s. 3); With regard to the Kolbari VM project , Shahar testified that in the end, equipment was purchased by HP and not by IBM, so that the project did not go to any of the defendant companies that were authorized suppliers of IBM (p. 3339, paras. 7-9, p. 3343, paras. 8-9, p. 3460, s. 6-11; and see also Zeiger, p. 5327, paras. 22-24, where he also referred to a discrepancy in the amounts). Naveh was also asked in his testimony about the projects in the table, and for the most part there was no real addition in his testimony (pp. 207-209). Other projects were not known or no real reference was made in relation to them (e.g., the Lior Tubali Malam project, Kav Meshva, and Kamin, ARED, the IRIS project came up in Shahar's testimony casually and without real detail, p. 3459, paras. 17-21; Regarding the three projects at the top of the table, nothing was mentioned, Shahar confirmed in his testimony that this indicates that there was no intention to divide them in relation to them. p. 3467, s. 20 - p. 3468, s. 7). It was also argued that the total sums at the bottom of the table, according to which Harel and Triple C have a similar scope of business, are ridiculous, since at the time of the meeting, the scope of Triple C's work vis-à-vis the civil appeal was small (Zeiger, p. 5332, paras. 2-17) and that it is not possible to agree on a mutual acquisition of one company from another at an early stage when a bill of quantities for the project has not yet been given, inter alia.(A follow-up project exempts Oshri from bidding and defense, and adjusts his answers to help Oshri
- According to the defendants, the discrepancies between the table and what happened in reality down the road - in their words: the fact that the table is detached from any reality, is unfounded - testifies that the meeting was not arranged as attributed and that the meeting was intended only for the mapping of projects and the attempt of each of the companies to extract information from the other companies while providing misleading information on its part. Zeiger and Harel further claimed that the table was nothing more than an experimental balloon initiated by Shachar and the fruit of his imagination in the attempt and hope of promoting market division.
I cannot accept these arguments. The discrepancies between the table and what happened in reality afterwards do not change the conclusion that an arrangement was made between the parties that restricts the competition and the action between them stopped, close to the events and contrary to the interests of the meeting, and this without explaining the reason for the change, see also them only after the impairment during the meeting.
- We discussed above the clear picture that emerged from the evidence and the testimonies of Shachar and Naveh regarding the conclusion and understandings made at the meeting regarding non-interference - non-competition - where a company began working with a certain project and by way of coordinating proposals that would ensure its winning. Shachar then sent an e-mail in which he explicitly referred to the "summary" "following our meeting" while attaching the table in a file entitled "Division of Labor by Agreement" (P/1). The defendants' arguments are therefore inconsistent with the testimonies and evidence from real time.
- The defendants categorically claimed that the table was worthless and delusional. This is what Zeiger argued in his testimony more than once (e.g., p. 5831, paras. 14-16). However, this is not how Zeiger relate to what he said in his interrogation with the Competition Authority. As stated above, in his interrogation, Zeiger denied the very existence of the meeting. During his interrogation, Seeger was shown the table, in the first stage, without being shown the accompanying e-mail message relating to the meeting (a copy of the table, P/418 was also seized in a folder on Gilad's computer, see P.C. 218, P/575). Zeiger replied that he was familiar with the table, raised the possibility that he himself or Gilad had written it, noted that they had written the table in order to know the size of the market and the potential sales, because it was information that came from the three companies, which also includes financial estimates of the size of the project and reference to future projects as well (P/222, 611-653). Zeiger added that he also wrote for himself during the meeting the table data (P/222, paras. 767-769, and see also his testimony, which shows that the projects in the table were discussed at the meeting and were recorded on the basis of the statements of the participants, p. 5329, paras. 12-18, there, as an example in relation to the PCG project). It is clear that Zeiger took the table and the data in it seriously, as valuable and important information from a business point of view. Insofar as Zeiger claimed in his testimony in real time it was clear that the data of the projects appearing in the table had no value or connection to reality, he would have been expected to say so as soon as he was presented with the table in the interrogation. When asked about this in his testimony, he did not have any real explanations, his answers were difficult and gave an evasive impression (p. 5827, s. 16 - p. 5830, s. 12; Zeiger also confirmed in his testimony that if it was clear to the participants of the meeting that the information presented in it was unfounded, it is clear that the meeting would have exploded, and that in fact the meeting did not explode, and as a result of it, Table A/1, p. 5834 was also held, S. 8-16). Hence, the retrospective claims that the table does not correspond to reality do not detract from the conclusion regarding the mood and conduct of the parties in real time and during the meeting in which they reached an agreement. Shachar was also asked by the defense: "The very fact that you thought maybe you could even divide something between you... It's delusional," he replied, "in retrospect for sure" (p. 3139, paras. 1-3; underline added). As stated above, Shahar testified contradictory to the accuser, and in large parts of his testimony it was clear that he was trying to adapt the answers to the interests of the defendants. Shachar also refers to the way in which things are understood in retrospect. To begin with, and as is clearly evident from the evidence, in real time during the meeting, the parties reached an arrangement regarding non-interference and coordination of proposals in IAI projects, as detailed above.
The defense's claims that there was no actual implementation
- The defendants further claimed that there was no actual implementation and that the arrangement reflected in the claim in Table A/1 was not implemented, since, as we saw above, some of the projects did not mature, in some of the projects were won by a different company than the one stated in the table, etc.
- These arguments do not change the conclusion regarding the offense of a restrictive arrangement and in relation to the arrangement that is the subject of the first indictment.
On the legal level, and as detailed above in the normative part, the execution of a restrictive arrangement and its actual implementation are not part of the elements of the offense. This is also perfected without it being required to show that an action was taken to implement the restrictive arrangement. The participants of the meeting reached an agreement during the meeting, as Shahar and Naveh testified. The content of the arrangement is not to interfere with the company that has already begun working with a project and to ensure that it wins by way of coordinating the bids that will be requested in the future. The e-mail message that Shachar sent to the other participants speaks of a "summary" following the meeting and constitutes clear evidence that an arrangement was made (P/1). Gathering all the details in an orderly table sent to the participants while associating projects with the balance of the companies' business is the beginning of implementation. Even if, in reality, some of the projects did not mature into procurement by any of the companies or fell into the hands of another company than the one listed in the table, this does not change the consolidation of the offense.