On the practical level, even if the arrangement was not executed in accordance with the specific details in Table A/1, it cannot be said that the parties did not act in accordance with the arrangement or that it did not have practical significance. The conduct of the parties further down the road was done in a manner consistent with the framework agreement and the understandings that were formulated at the meeting, following them and on the basis thereof. As we shall see below, the parties worked to coordinate price quotes for many IAI projects, including the projects specified in the table that was the subject of the meeting (P/1). In this sense, they acted in accordance with the first indictment and subsequently the understandings in the meeting to coordinate proposals in order to ensure the win of one of the companies. The coordination between the parties will be discussed below as part of the hearing on the following charges. However, for example, it should be noted that in October 2009, a few months after the meeting that was the subject of the first indictment, Shahar (Wei), Gilad (Harel) and Naveh (Triple C) coordinated the proposals submitted to the Indra project, Spain, which is one of the projects in the table (P/1). In the e-mails that were exchanged on the matter, Shahar wrote to Zeiger and Gilad explicitly that he was contacted "following the conclusion" - that is, following the meeting and the settlement of the first indictment. After Gilad drew his attention to the matter, Shahar sent the message with Harel's prices for the project to Naveh as well, as he was the other participant in the meeting (P/563, P/17). Subsequently, in 2010, Shahar acted in coordination with Gilad and Zeiger regarding the Tarp project, Turkey, which is also one of the projects in Table A/1, and in the e-mail message he sent them he stated that he was doing so "in continuation of our meeting" (P/39, and see also Zeiger's testimony, which indicates that the intention was to the meeting that was the subject of the first indictment from around May 2009, p. 5917, paras. 8-17; For another example of correspondence for coordination between the three companies (which is not included in the charges), see P/10, an e-mail message on the subject of "spare parts for the telescope" and Naveh's testimony linking the correspondence to an "understanding" between the three companies, p. 94, s. 13 - p. 95, s. 6, and in general pp. 92-95). These words are consistent with Naveh's statements in his interrogation at the Competition Authority, from which it emerged that the cooperation between the companies in the bids they submitted did not come into existence until after the meeting, and that was not the way they had done before it (P/2, paras. 607-611; in his testimony he changed things substantially and testified to the opposite, as if the cooperation in the quotations had taken place even before the meeting, without explaining the reason for the change. See also p. 211, paras. 1-16. The things he said during the interrogation should be preferred, close to the events and contrary to the interest). Zeiger and Harel claimed that Shahar conspired between coordination correspondence that was made later and the summary or meeting in an attempt to create a semblance of the implementation of the arrangement and create commitment on the part of his competitors. This claim is unfounded and is not supported by the evidence and documents from real time. The picture that emerges, therefore, is that in practice, too, the parties acted in cooperation and in accordance with the understandings from the meeting and the arrangement that is the subject of the first indictment. This conduct of the parties in cooperation and coordination in the period following the settlement that is the subject of the first indictment also undermines the defendants' claims that at the meeting "everyone deceived everyone" and that this was clear to everyone. After all, it would have been expected that shortly after the meeting, the parties would cease any cooperation between them.
- Finally, the defendants reiterated the general defense's arguments, the essence of which was that there was no possibility of real competition between the suppliers at the request for quotation stage; that the supplier from which the civil appeal would purchase the equipment was selected at an earlier stage by the technical director of the project in the civil appeal and by IBM and that the request for quotation proceedings was nothing more than a "show" "for the sake of appearance"" due to the internal needs of the civil appeal due to its procedures at the request of someone on its behalf and in accordance with its interests. Therefore, it was argued that there was no feasibility for the alleged arrangement and in any case this supports the conclusion that the parties at the meeting did not reach the arrangement as claimed at all. These general arguments will be discussed separately as part of the hearing of the individual charges. As it seems, they cannot be accepted and do not change the conclusion in our case.
The First Charge: The Result
- The result of the aforesaid is that it has been proven, beyond a reasonable doubt, that the coordination and restrictive arrangement that is the subject of the first indictment between Wei, Harel and Zeiger, and Triple C, all as described in the first indictment, has been proven. Therefore, I convict Wee, Harel, Zeiger and Triple C of the offense of being a party to a restrictive arrangement under section 47(a)(1) of the Competition Law, as drafted on the eve of the commencement of Amendment No. 21, together with sections 2(a), 2(b)(1), 2(b)(2), 2(b)(3), 4 and 55A of the Competition Law. With respect to the defendant companies - V, Harel, and Triple C, the conviction is also based on section 23(a)(2) of the Penal Law.
Oshri and Nahum - Section 48 of the Competition Law - Officer's Liability
- In the amended indictment, Oshri and Nahum were charged with an offense under Section 48 of the Competition Law. As detailed above in the normative part (in paragraphs 20-23 above), this section deals with a breach of the duty of an officer of a corporation to supervise and do everything possible to prevent an offense under the Competition Law. The elements of the offense, in accordance with the current wording of the section and after Amendment 21 to the Law, are that the defendant is an officer - including an active manager of the corporation - and that an offense under the Competition Law was committed by the corporation or one of its employees. When it is proven that an offense has been committed, it is presumed that the officer breached his duty unless he proves that he did everything possible to fulfill his duty (section 48(b) of the Competition Law; in the previous version, it was required to prove that the offense was committed without his knowledge and that he took all reasonable measures to ensure that the law was observed; see the discussion there).
- We discussed above the positions held at the relevant times by Oshri Bowie (Executive Vice President and later CEO) and Nahum Batriple C (CEO and Owner) (in paragraphs 52 and 67 above). The case law held that the term "active manager" applies at least to officers who have the power to prevent or reduce the company's involvement in the commission of offenses under the law (paragraph 21 above). In view of their roles, Oshri and Nahum should be seen as active managers in the companies.
- Although knowledge of the offense - in our case, the restrictive arrangement that is the subject of the first indictment - is not one of the elements of the offense, we will briefly address the evidence that was brought in this context.
Oshri - Shachar stated in his statement that it was clear that Oshri knew about the meeting and that Shahar reported to him the content of the meeting, in which, as stated above, the arrangement was made (P/557(8), paras. 68-71; in his testimony, Shahar did not deny the statement and replied that "it could be" that they were true, p. 2653, s. 23 - p. 2654, s. 14 It is possible that as part of the attempt to omit Oshri's part; And I am not required to say anything else that Shachar said according to which Oshri told Shahar to tell Zeiger that Wee should also win some of the projects, P/557(4), paras. 606-612, in relation to which Shachar stated in his testimony that he did not remember, p. 2642, paras. 3-5; or according to Shachar that Oshri was a party to the summary, P/557(4), paras. 616-621, from which he retracted his testimony by saying that he may have made a mistake, p. 6562, paras. 17-22). Support for the fact that Oshri knew about the meeting and the summary thereof emerges from an email message that Shachar sent a few months later (P/289) - with a copy to Oshri - in which the price adjustment that is the subject of the second indictment began, while expressly writing that the matter was being done "in continuation of the summary", i.e., in continuation of the settlement of the subject of the indictment here (see paragraphs 129, 144-147 below). This is in contrast to Oshri's testimony that he did not know about the meeting and the conclusion that is the subject of the first indictment (p. 4859, s. 26, p. 4327, s. 11-19). More than necessary, we should note that even according to the offense in the formula prior to the amendment, and in particular in view of the aforementioned email message (P/289), it seems that there was room to determine, at the very least, that Oshri did not meet the burden of persuasion to show that he did not know.