In our case, the argument that the restrictive arrangements to which the defendants were a party are subject to trivial reservations must be rejected. We are dealing with horizontal price coordination arrangements, between competitors, without any justification or legitimate purpose, for the coordination of price quotes submitted in the framework of the Balam proceedings, including those of public bodies – mainly a civil dispute, which is a government company, but also of the Planning Authority – behind their backs and without the knowledge of the orderers, in significant financial amounts, of the possible harm that may arise from this. This is how things are with respect to each coordination arrangement on its own. This is all the more so when we take into account the overall picture and the methodology that emerges from it. The defense's arguments with respect to these and other differences between our case and the facts that were clarified in the Ariel case do not justify a different conclusion with regard to the applicability of the qualification of trivial matters. The arguments are also not convincing on their merits. The argument that the defendant suppliers could not request an exemption from the Competition Commissioner due to the exemption granted to IBM is not clear (beyond the fact that it was not supported by evidence). The suppliers concealed the coordination arrangements from the civil appeal and the other ordering parties. They worked behind their backs. As was the case in the Ariel case , the suppliers chose not to apply to the Competition Authority "for reasons that are reserved for them [that] there is no difficulty in standing" (ibid., at paragraph 29) and in the absence of any legitimate justification for price adjustments. Nor should the argument that there was harm or possibility of harm to competition and the public coffers should not be accepted (and we saw above that from the testimonies, including those of the defendants, it emerged that genuine competing offers could have benefited the client and led to a reduction in the price of the engagement with him). The argument that a supplier who submitted a high bid in coordination did not receive compensation for it ignores the general picture regarding the conduct of the suppliers and the reciprocity that arises from it, including the general coordination of projects in the civil appeal that is the subject of the first indictment, and the fact that in other cases it was actually the said supplier that won on the basis of high coordinated bids submitted by the others (see, for example, P/388, which was discussed in paragraphs 635, 667 and 672 supra, on what follows).
- In view of the aforesaid, the defense's arguments should be rejected both with regard to the applicability of the absolute presumptions and with respect to the qualification of trivial matters.
- A constitutional attack? - In the margins of their summaries, Wei and Oshri sought, as a final alternative argument, to attack the absolute presumption set forth in section 2(b) of the Competition Law as a constitutional attack and to order its cancellation in relation to horizontal arrangements as well. It was argued that the absolute presumption does not meet the tests of the limitation clause and the required test of proportionality (paras. 630-632 of the summaries).
The arguments were raised in a general manner and without any real detail. As it has been held more than once: "A general claim of a violation of constitutional rights is not sufficient to establish a petition seeking to repeal a provision of the law ... An allegation of constitutional violation cannot be heard in vain, but must be properly established, while laying an appropriate factual basis and a concrete constitutional analysis of the various stages of constitutional review" (e.g., High Court of Justice 8568/19 I and You, the Israeli People's Party v. Knesset of Israel, at paragraph 7 of the judgment of the Honorable Justice M. Mazuz, January 22, 2020)); High Court of Justice 7194/21 Adv. Siboni v. The Public Committee for the Formulation of a List of Individual Trustees in paragraph 19 of the judgment of the Honorable Justice D. Mintz (January 23, 2022)). It is sufficient that no orderly constitutional argument and examination were presented as required to justify the rejection of the claim. In addition, the defendants do not deal in any real way with the section on the protection of the laws in the Basic Law: Human Dignity and Liberty. Moreover, they do not deal with the Supreme Court's ruling, which discussed the purpose of the absolute presumptions that are capable of promoting the legal certainty and the level of deterrence of the law, with the aim of also reducing the scope of the required investigation and saving judicial time (among many, the Wall case in paragraph here). These reasons are certainly correct and appropriate in horizontal price coordination arrangements that were made behind the client's back, and which have no legitimate purpose or pro-competitive reason.