Against the background of these broad powers and significance, it is not for nothing that the role of the Competition Commissioner was described in the past as a kind of "economic gatekeeper":
"On the general level, it should be said that the commissioner is like the observer in chapter 33 of the book of Ezekiel (v. 7), 'And you, a man of observer, I will give you to the house of Israel...' It is true that it is customary to apply these words to the Intelligence Corps, but economic 'gatekeepers' also have a similar role; the role of the commissioner is in the sense of 'the guard of antitrust shall neither sleep nor sleep' [...]" (High Court of Justice 4501/14 Persky v. Antitrust Commissioner, paragraph 19 of the judgment of Vice-President E. Rubinstein [Nevo] (July 23,2015)).
Against the background of the normative basis relevant to our case, we will return to the facts of the case at hand.
Summary of the facts required for our case and the proceeding that is the subject of further discussion
- On January 9,2022, the 36th Government of Israel, in accordance with the proposal of the then Minister of Economy and Industry and the recommendation of a search committee, appointed Respondent 2, Adv. Michal Cohen, to the position of Competition Commissioner for a fixed term of six years (Decision 948 of the 36th Government "Appointment of the Competition Commissioner" (January 9,2022)). Subsequently, after the swearing-in of the 37th Government, on January 1,2023, Respondent 3 assumed his position as Minister of Economy and Industry (hereinafter: The Minister).
- On January 28,2024, the Minister requested the Commissioner to convene the Appointments Committee in order for it to give its opinion regarding the termination of the Director-General's term even before the end of her fixed term of office. In summary, it should be noted that the request detailed various objections and arguments of the Minister regarding the performance of the Director-General, and it was argued that there was room to order the termination of her term, both due to "a clear and ongoing incompatibility with the position", and due to "a severe and ongoing crisis of confidence, with substantial and prolonged disagreements with respect to the Competition Authority" (in accordance with the grounds set forth as stated in Resolution 4062). On February 21,2024, the Director-General sent its detailed response to the Minister's claims, arguing that they should be rejected. In this context, it was emphasized that the minister's request did not lay a factual basis that supports the termination of her term of office in accordance with the grounds that were determined. It was also stated that the minister and the director general of his ministry tried to intervene in areas that are subject to the independent discretion of the director-general, and that on May 21,2023 - less than six months after the minister took office - she was even asked to come to the minister's office, unaccompanied and without a mobile phone, where he asked her to resign.
On March 20,2024, the Commissioner informed the Minister that his request was being handled by the Ombudsman in coordination with the Legal Advisor to the Government and that the question of whether there was prima facie basis for one of the grounds for termination of office was being examined. Subsequently, after the Minister accepted the preliminary examination process, on April 10,2024, the Deputy Attorney General (Public-Administrative Law) replied that within the framework of the Commissioner's authority to convene the Appointments Committee, he must exercise professional judgment and examine whether there is a factual basis at the level required for the exercise of his authority. It was further stated that taking into account the characteristics of the position in question, and in view of the fact that the very convening of the Appointments Committee initiates an administrative proceeding that would harm the position of the position, and may even create a "chilling effect" among senior officials in the civil service, the position that the Commissioner is required to convene the committee "automatically" upon receipt of a request from the Minister should not be accepted.
- At the same time, and while the preliminary examination proceeding is underway, in July 2024, Respondent 1 (hereinafter: Lavi), as a public petitioner, the petition that is the subject of the additional hearing, in which it accepted the time that had elapsed since the submission of the application by the Minister and requested that the Appointments Committee be convened.
- On August 12,2024, after the preliminary examination was completed, the Commissioner responded to the Minister's request. Essentially, the response stated that there was no legal reason for convening the committee to discuss the Minister's request to terminate the term of office of the Commissioner, in the absence of a prima facie factual basis that supports the Minister's request. In more detail, as to the ground for clear incompatibility with the position, it was written as follows:
"As noted above, a clear ground for unsuitability for the position is a situation in which the employee's performance indicates that he is unfit for the position. A lack of suitability for the position does not arise from a disagreement with the Minister regarding the manner in which the Director-General's powers are exercised. A review of your arguments shows that even if all of these claims turn out to be true, even if they were not found to be factually based claims at this stage, they do not negate the Commissioner's competence for the position in terms of her knowledge and experience in the areas of the Competition Authority's practice. [...] Your claim that it does not exercise its powers in accordance with your policy does not lead to the conclusion that it is unfit for the position [...]" (ibid., at paragraph 7).