Competing companies may wish to collaborate due to various goals, which are not necessarily anti-competitive - such as security matters, for example ■ The Antitrust Authority should adopt a more flexible policy in such cases.
Recently, the General Director of the Antitrust Authority refused the request of the Salt Company and Dead Sea Works to collaborate in the export and marketing of salt outside of Israel. Although the applicants argued that the requested collaboration would have no implications for the Israeli market, the General Director believed that the collaboration could spill over into the Israeli market. Without expressing an opinion on this specific case and its unique circumstances, it is appropriate to discuss the interpretation given by the General Director to the term "liable" in Section 2 of the Antitrust Law. Prominent corporations in the Israeli economy approach the Antitrust Authority to clarify its position on various issues, such as conversations with competing managers during conferences, the exchange of information regarding personnel or problematic clients, initiating promotions for retailers, joint discussions of security officers on the implications of the security situation regarding the supply of goods to the territories, and more. These inquiries stem from the desire of the corporations and their managers not to fail by taking an action that is liable to be considered a restrictive arrangement, as defined in Section 2 of the Antitrust Law. As is well known, the responsibility for corporate actions also applies to its managers, unless they can prove that the offense was committed without their knowledge and that they took all reasonable measures to ensure compliance with the law. Even one who is not a party to a restrictive arrangement but knows of its existence and adapts themselves to it – will be considered a party to the restrictive arrangement (Section 6, Section 48 of the Law). The Authority's policy is crucial for the practical level of providing legal advice to a client. Most clients are indeed interested in finding a legal solution that validates the requested agreement or collaboration, but they do not wish to confront the Antitrust Authority or risk initiating legal proceedings, even if they would ultimately emerge victorious. When legal advisors come to give an opinion on whether an action is liable to constitute a restrictive arrangement, they must check the law to see if the elements defining a restrictive arrangement apply. However, such an examination must take into account – aside from the language of the law, the decisions of the General Director and public statements, the decisions of the Antitrust Tribunal and the courts in Israel and abroad – also the worldview, interpretation, and customary policy of the Antitrust Authority. The doctrines of the "shared table" and the "slippery slope" serve as a common interpretive tool used by Antitrust Authority personnel when they come to interpret Section 2 of the Law and particularly the term "liable to prevent or reduce business competition" appearing therein. These doctrines maintain that any current meeting between competing corporate managers, even if the topic raised does not prevent or reduce competition in the present, carries the risk of creating a "shared table", which will breed future collaboration that will harm competition, and therefore it is appropriate to prohibit it right now. Any transfer of business information, even if its present implications are pro-competitive and do not harm competition, is liable to become a "slippery slope" of information exchange that will harm competition, and therefore its transfer must be prohibited – the sooner, the better. It is highly doubtful whether this interpretation is appropriate from the perspective of competition law and general law. There are quite a few cases where this interpretation is too sweeping and torpedoes the exchange of information between competitors that could encourage competition. Competitors may wish to collaborate due to various goals, which are not necessarily anti-competitive goals. For example, the security situation caused manufacturing companies in the economy, which transport their products to Judea and Samaria and to Arab localities, to want to hold regular meetings between their security officers, in which they would discuss problematic traffic routes, fear of food product poisoning, and courses of action to address problems. As long as the exchange of information does not alter the independence of the decisions and considerations of each corporation separately, it should be treated as the General Director treated it in his decision regarding the Israel Advertising Association and the Manufacturers Association of Israel, where information was transferred between competitors regarding problematic clients and the General Director believed it was a restrictive arrangement that deserved an exemption, as it did not significantly harm competition. A distinction must be made between the exchange of information between competitors and the implementation of a uniform and joint policy resulting from the information exchange, and intervention should only occur where the information exchange actually binds the discretion of the competitors. Therefore, it is fitting that the Authority re-examine its policy and adopt a more flexible policy, in the spirit of the words of Justice Türkel in the matter of A.M. Stores v. Jerusalem Municipality: "The definition of the restrictive arrangement must be minimized as much as possible so that innocent parties do not unwittingly become offenders". This is the place to note that the Antitrust Authority deserves praise for the fact that its personnel succeed in providing rapid and relevant responses to lawyers who approach them on behalf of their clients, so that both sides benefit – the lawyers equip their clients with an opinion that is not only learned but also acceptable to the Authority, while the Authority personnel implement a preventive policy. It only remains to be hoped that this practice of the Authority will also serve as an example for other authorities that commercial lawyers work with.