Indeed, according to the law that preceded Amendment 21 to the Law, it was possible to prosecute an active manager for the offense of a party to a restrictive arrangement – even if he himself was not involved and was not a party to the arrangement – where the corporation committed such an offense and the manager did not prove that he did not know and took any reasonable measures to uphold the law. This option no longer exists after the repair. However, this does not detract from the possibility of convicting a party to an arrangement offense of a restrictive defendant who is an active manager who was himself involved as a party to the arrangement, as determined above in relation to Oshri.
In addition, and this is the main point, where the defendant is also an active manager who even breached the duty of supervision and did not do what is required to prevent offenses in the corporation, including in relation to other officers in the corporation, there is no theoretical impediment to convicting him of the offense of breach of the duty of supervision by virtue of section 48 of the Law. First, the elements of the offense under section 48 of the Law are different from those of the offense of a party to a restrictive arrangement under section 47(a)(1) of the Law. In particular, taking into account the fact that liability due to a breach of the duty to supervise and do what is required to prevent offenses under section 48 of the Law can be crystallized even without the offense committed by a party to a restrictive arrangement (or any other violation of the Competition Law) (see and compare Miscellaneous Applications Criminal 2639/23 Peretz v. State of Israel in paragraph 11 of the decision of the Honorable Justice E. Stein (April 23, 2023), where it was held that for the purpose of examining the relationship of inclusion or inclusion, the comparison is between the elements of the offenses). Second, the purpose of the offense under section 48 of the law is also different. This is a preventive purpose of raising the level of caution taken by the corporation in order to prevent violations of the Competition Law. As stated above, this offense can also be crystallized in the absence of a separate offense against the provisions of the law (I am aware of the position expressed in criminal case (Central District) 49409-02-25 State of Israel v. Ravid (March 15, 2026). Suffice it to note that our matter here is different from the matter discussed in that case; There, the officer's responsibility, the supervisory failure, was summarized in the fact that the officer did not do enough to prevent him from committing the offense; While here, both in the indictment at hand and in other charges, we are dealing with the commission of offenses as well, and sometimes mainly by other organs).