Therefore, and as explained in the said decision, I do not believe that there was any flaw in the very decision of the Legal Counsel to file the motion for an additional hearing, which, as stated, raises weighty issues of principle. Naturally, it is expected that the Legal Counsel to the Government will seriously consider filing a request for an additional hearing where its original position was rejected in a judgment of this Court. However, without diminishing the necessary caution, it is clear that in appropriate cases, the door should be left open for taking this avenue of discussion, in circumstances in which the Legal Counsel is of the opinion that the public interest requires an additional hearing of the precedent established by this Court.
The parties' arguments
- On the substance of the matter, the Applicants claim that the Commissioner's decision to convene the Committee at the request of a Minister is an independent administrative decision subject to the rules of administrative law, including the duty to check that there is a factual basis, even if primary, that supports the Minister's claims. As a result, it was argued that the Commissioner has the duty to ensure that there is such a factual basis that enables the initiation of termination proceedings, in order to ensure that the Minister's authority is not abused. According to them, the determination that the Commissioner, as chairman of the committee, has only a procedural role opens a problematic door for the promotion of termination proceedings for senior officers who are required to act independently - in particular those with enforcement powers such as the commissioner - without a sufficient factual basis and while violating the principle of the independence of the position. This damage, it is argued, is liable to be caused even if, at the end of the proceeding, the committee finds the minister's claims unjustified.
- As to the cause of action concerning a severe and ongoing crisis of confidence, according to the applicants, the judge's position Elron, according to which this is a subjective ground, is liable to lead to the practical subordination of senior officers with enforcement powers to the ministerial echelons, in the sense of personal positions of trust. This is because acting against the will of the appointed echelon - in matters devoted to the independent discretion of the officers - is liable to lead to alleged harm to the minister's subjective trust in the officers and to the promotion of termination proceedings at any time. In addition, it was emphasized that the judge's interpretation Elron Ignored the condition Cumulative which is listed on the grounds that the existence of a severe and ongoing crisis of confidence is required, and A situation that prevents effective and proper functioning as a result of the aforementioned crisis of trust.
- On the other hand, the Minister is of the opinion that there is no room to change the judgment. The Minister insists that the Applicants have changed their minds as to the normative source that grants the Commissioner the authority not to convene the Committee - whereas in the framework of the previous proceeding they claimed that the Commissioner's instruction is the source of authority, it is now argued that the convening of the Committee is an administrative decision of the Commissioner, and as such it is subject to the rules of administrative law. In this context, it was argued that a general reference to the principles of administrative law is not sufficient and that a positive source of the Commissioner's authority should be indicated. It was further argued that the Applicants' approach contradicts the language of Resolution 4062, which states that the powers are vested in the Committee as a whole, and leads to the disqualification of the Committee's authority. According to the Minister, all that the Commissioner is required to examine before convening the Committee is the existence of a request from the Minister, and nothing more.
- As to the Applicants' argument regarding the "chilling effect", it was argued that a desirable law does not have the power to establish a common law, and that in any event, in this case, it is the continuation of the proceedings due to the preliminary examination that harms the Commissioner, whose cloud continues to hover over its head. Moreover, and concretely, the Minister clarifies that there is no basis for the accusations that he exerted improper pressure on the Commissioner. Therefore, it was argued that there was no well-founded justification to prevent the convening of the committee.
- Lavie agrees with the Minister's arguments and is also of the opinion that there is no room to change the judgment. In essence, Lavi argues that the rule according to which a sufficient factual basis is required for the purpose of making an administrative decision cannot in itself establish a non-existent authority. It is further argued that the Commissioner's directive does not have the power to thwart the mechanism set out in a government decision, which is a normative source of higher status; that the Government's decisions show that the Commission's role was from the outset to concentrate the Committee's activities in a purely technical sense, certainly in view of the fact that when the aforementioned authority was originally given to the Commission, the chairman of the relevant committee was a retired Supreme Court judge and not the Commissioner; and that the claim regarding the "chilling effect" is speculative.
- On June 30,2026, a hearing was held before us, in which the parties reiterated the main points of their arguments as detailed above.
Discussion and Decision
- Therefore, the focus of the additional discussion before us is the decision as to the boundaries of the sector between the powers of the Commissioner on the one hand, and the powers of the Appointments Committee on the other, in the framework of termination proceedings of senior officers during their fixed term of office. All this, as stated in my decision of January 15,2026, taking into account the precedent-setting nature of the termination of term of office proceeding that is the subject of our case, which is the first of its kind, and its broad implications for similar future proceedings. Within the framework of this examination, consideration must also be given to the unique characteristics of the grounds for termination of office in the shadow of which the hearing was held - a severe and ongoing crisis of confidence.
- Here it is appropriate to note that the main purpose of the additional discussion, by its very nature, is to decide the fundamental legal questions that arise within its framework, from a forward-looking perspective, which only deviates from the operative decision in the concrete circumstances of the case (Additional Civil Hearing 21/89 Cohen v. Oshiot Insurance Company Ltd., IsrSC 45(3) 499,503 (1991); see also: Additional Civil Hearing 2439/94 Bloch v. Gilor, IsrSC 48(3) 319,324 (1994)). In this context, it should be clarified that the mere existence of an additional hearing of the judgment of this Court does not indicate that there is justification for reversing the rule established therein; it means that the nature and weight of the questions that arise within its framework justify their further examination by an expanded panel of this Court. Accordingly, the result of the additional hearing may sometimes be - the confirmation of the rule established in the judgment (for example: Additional Civil Hearing 7480/18 Kritzmer v. Jerusalem Tax Assessor [Nevo] (31.10.2021); Additional Hearing: High Court of Justice10007/09 Gluten v. The National Labor Court, IsrSC 66(1) 518 (2013); Further Discussion 15/78 Levitt v. Real Estate Appreciation Tax AdministrationIsrSC 32(3) 572 (1978); Further Discussion 44/75 Biton v. PeretzIsrSC 30(3) 581 (1976)); sometimes - accuracy, perfection or refinement of the halakha (for example: Additional Civil Hearing 2045/05 Vegetable Growers Organization - Cooperative Agricultural Association Ltd. v. State of Israel, IsrSC 61(2) 1 (2006), and see also in this context: Civil Appeal Authority 3961/10 National Insurance Institute v. Sahar Claims Company Ltd., paragraph 16 of the judgment of the Vice-President A. Rivlin [Nevo] (26.2.2012)); And sometimes - the reversal of the established halakha (for example: Additional Hearing: High Court of Justice5120/18 Women Call for Childbirth - For Freedom of Choice in Childbirth v. State of Israel [Nevo] (21.7.2021); Additional Civil Hearing 5325/19 Hachshara Insurance Company Ltd. v. Picali [Nevo] (7.7.2021); Additional Civil Hearing 4960/18 Seligman v. The Phoenix Insurance Company Ltd. [Nevo] (July 4,2021)). Each of these results fulfills the purposes of the further hearing in its own way. From this perspective, we will now turn to a decision in the present proceeding.
- In our case, I will preface the discussion and say that on the main question that was placed before us, I have found that I have come a long way with the majority opinion in the judgment that is the subject of further discussion. Like them, I too am of the opinion that, as a rule, the Commissioner alone does not have the authority to refrain from convening the committee for the purpose of discussing a minister's request to terminate the term of office of a senior officer. However, this conclusion does not stand alone and requires completion. As will be detailed below, I am of the opinion that in view of the weighty arguments raised by the Applicants, there is room in our case to add to the majority opinion approach."Extra floor". This is done in a way that provides a better response to the need to prevent the "chilling effect" and to ensure the independence of officers of the type of the Competition Commissioner.
- In my opinion, the determination that the commissioner alone cannot prevent the convening of the committee does not mean that the commissioner is obligated to bring it before the committee precisely by means of a full investigation. Thus, in his capacity as chairman of the committee, the commissioner is entitled to place on the committee's table a proposal to first hold a preliminary and expedited hearing of the application, where he believes, on the basis of a legal opinion, that it does not disclose prima facie grounds for termination of office or that there was some other clear administrative defect in it. In this way, the decision as to whether there is room to continue clarifying the minister's application on its merits is not made by the commissioner alone, but is brought before the committee itself. For the purpose of this preliminary decision, the commissioner may convene the committee for a discussion on the basis of the texts and without the need to hear the parties. If the committee finds that the request should be "rejected out of hand" as aforesaid, its recommendation will be brought before the government (see in this regard what is stated in paragraph 58 below).
- In the course of these remarks, and as will be expanded later, when we convened in an expanded panel of this Court, I found myself adding a number of comments of principle with respect to the ground for termination of the term, which concerns a severe and ongoing crisis of confidence. I will make it clear at this moment that my position in this context is close to that of my colleague Justice Kabub. Thus, in my view, this ground must be examined very carefully, and on the basis of objective-professional evidence, as opposed to for reasons of subjective-personal dimension.
So briefly and now extensively.