It was further argued that where the burden shifted to the defendant, he must prove that "the offense was committed without his knowledge and that he took all reasonable measures to ensure the observance of this law", as required by law prior to the amendment, and in contrast to the post-amendment wording, according to which an officer is required to prove "that he did everything possible to fulfill his duty" to supervise and prevent an offense.  It is doubtful whether in the amendment the legislature sought to set a more stringent standard in this matter (see: Transcript No. 901 of the Economic Affairs Committee meeting, p.  63 (December 25, 2018), where the position was expressed that the intention of the change was to reduce the liability for supervisory responsibility, without deviating from the interpretation given in relation to the required measures and without requiring unreasonable measures; and see and compare also: Criminal Appeal 4783/09 Schulstein v.  Antitrust Authority in paragraph B, where it was stated that there is a great deal of closeness between the expressions, Even if it is not a complete identity (September 16, 2010)).  In any event, this matter also does not need to be decided since both Oshri and Nahum did not meet the burden of proving that they took any actions, let alone actual actions, to prevent offenses under the Competition Law, and in any case they did not meet the burden of proving that they acted as required, whatever the threshold, whether to take "all reasonable measures" as worded before the amendment, or to do "everything possible" as worded after the amendment.

115. Oshri - Oshri explicitly admitted in his interrogation that there was no awareness of the issue of competition offenses and the prohibition of restrictive arrangements; that no training or briefings were conducted for employees on the matter, and in any case that there was no supervision on the matter; and that he never sought legal advice in order to understand what was required to be done in order to avoid competition offenses (P/214, paras. 238-243; this was also revealed from his testimony, p.  4749, paras.  5-9).  This, even detached from the presumption, is sufficient to determine that Oshri breached the duty of supervision and that all the elements of the offense set forth in section 48(a) of the Law have been formed.  General arguments in the summaries (e.g., para.  560 there) that Oshri did everything possible and took reasonable measures to preserve the provisions of the law and its spirit, without any real detail, do not alter and do not raise the burden imposed on the defendant as stated above.
116. Nahum - As stated above, Nahum, who was the owner and CEO of Triple C at the relevant times, did not testify at the trial. When it was found that Triple C committed an offense by a party to a restrictive arrangement, the presumption arose that Nahum did not supervise and did nothing possible to prevent an offense under the Competition Law (Section 48(b) of the Law).  Nahum did not lift the burden to contradict the presumption and did not prove that he took real measures, let alone reasonable measures, or that he did everything possible to fulfill his duty.  Far from it.  In his reply to the indictment, nothing was argued in this context (reply of December 11, 2017).  Nahum also did not refer in his summaries to any argument that he raised in this context in his interrogations (P/236-P/239).  In the summaries, Nahum claimed that he was clever and did everything in his power to prevent an offense.  In this context, he sought to build on Naveh's testimony in which he testified that Nahum told him that he (Nahum) did not want to do business with Elta "because of their games with the distributors" and that Nahum did not want to work at Elta (P/2, paras.  176-179, Naveh's testimony, p.  143, paras.  1-22); He also sought to rely on the fact that Naveh worked, before he joined Triple C, in large companies, some of them international, which - so it was assumed - had instructions, presentations and bylaws, and therefore Naveh knew and should have known what was permitted and what was forbidden (paragraphs 83-84 of Nahum and Triple C's summaries, Naveh's testimony in relation to the places where he worked prior to Triple C, p.  131, s.  19 - p.  132, s.  2).  These do not constitute taking any means of supervising and preventing offenses, even remotely, and they do not meet the required threshold.  This, both in general and in particular, when he informed Nahum about the meeting and the forbidden understandings in it (see: Criminal Appeal 5823/14 Shufersal in Tax Appeal v.  State of Israel at paragraph 33 (August 10, 2015), where the ruling was confirmed in a criminal case (Jerusalem District) 118/10 State of Israel v.  Rosenhuis at paragraph 107 (December 23, 2013)).
117. To be precise: in the circumstances of the case here, I am not required to outline precisely the measures that must be taken in order to fulfill the duty of supervision. In the literature, the opinion was expressed that in light of the provisions of the Competition Law and its purpose to incentivize officers to do everything possible to ensure compliance with the law, "officers are charged with ensuring the implementation and implementation of an internal control and enforcement program, which is based, inter alia, on a clear policy regarding what is permitted and what is prohibited, a training system for employees, and mechanisms for reporting possible violations and offenses" (Zohar Goshen, Assaf Eckstein Corporate Law (2023), p.  198).  In one of the rulings, a dispute was mentioned as to whether the existence of training was sufficient or whether the defendant must also prove that the employees were regularly monitored and supervised in order to ensure that they acted in accordance with the training (HCJ 3200/22 Erez v.  Competition Authority, paragraphs 32-33 (February 6, 2023); and see also Criminal Case (Jerusalem District) 118/10 State of Israel v.  Rosenhuiz, at paragraph 107 (December 23, 2013), where it was found that an internal enforcement program and a code of ethics and training for employees and managers were not sufficient where an active manager did not act to stop illegal activity that took place before his eyes).  On the face of it, the requirement to take such measures is reasonable and consistent with the purpose of the provision of s.  48 of the Law "to bring about an increase in the standard of caution taken by officers of a corporation ...  As an instrument that comes to increase their control, supervision and supervision over the company's operations and to incentivize the taking of precautionary measures...  " (Criminal Appeal 4783/09 Schulstein v.  Antitrust Authority, paragraph 33 (September 16, 2010)).  As stated, in the circumstances here, even without precisely requiring the means that will be required to meet the standard set by law, it is easy to see that in our case Oshri and Nahum did not take any real measures to prevent competition offenses, even though, as appears from the case law on the relevant dates, and many years earlier, the laws of competition were significantly enforced, and the prohibitions set forth therein were known, at least should have been known, to anyone conducting business.
118. Therefore, a clear foundation was laid in the level of proof required in a criminal trial that the elements of the offense under section 48 of the Competition Law were fulfilled in Oshri and Nahum with respect to the first charge and the date on which it was committed.
119. General arguments raised in connection with this offense, including Nahum's arguments regarding the duality of the penal law, will be discussed separately, after the hearing of the individual charges (see below, paragraphs 1108-1112).

, S. 484-490' 25-15, where he confirmed the correctness of what he said in his interrogation, P/557 other companies, that they were exposed to price competition and harm to their profitability

The second indictment

The second indictment: Project Indra - Balam from September 2009

120. The second indictment was directed at Shahar, Oshri and Wee; Gilad, Zeiger and Harel, Naveh and Triple C. According to the indictment, during the month of September 2009, ELTA approached a number of companies to receive quotes for the Indra project.  It was claimed that during the months of October-November 2009, the aforementioned defendants were parties to an arrangement whereby Harel and Triple C would submit higher bids than Wee in order to enable Levi to win Balam Indra.  It was claimed that the bids submitted were in the sums of more than $300,000, that the parties submitted bids in accordance with the arrangement and that Wee was selected to perform the Indra Underground.  Nahum was credited with not being smart and did everything possible to prevent an offense under the Competition Law.  This was also attributed to Oshri in addition to being a party to the settlement.  As stated above, the case of Shahar, Gilad and Naveh ended in plea bargains.  With regard to the remaining defendants, on the basis of the aforesaid, Oshri and Levy, Zeiger and Harel and Triple C are charged with an offense of a party to a restrictive arrangement under section 47(a)(1) of the law as drafted at the relevant time, together with sections 2(a), 2(b)(1), 2(b)(3), 4 and 55a(b) of the Competition Law.  In relation to the defendants, the indictment refers to section 23(a)(2) of the Penal Law.  Oshri and Nahum are attributed the responsibility of officers by virtue of Section 48 of the Competition Law.

Discussion