Tadmor Levy & Co
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Competition & Antitrust
The Israeli Competition Authority recently published a draft public statement regarding the submission of joint bids by competitors in tenders. The draft proposes an interpretation of the Competition Law that may significantly affect the business activities of entities operating in Israeli tender markets. Foreign entities that consider participating in bids in Israel as part of a group should be aware that they may need to obtain the competition commissioner's prior approval.
The Competition Tribunal's recent judgment thoroughly analysed the legality of target discounts offered by a dominant firm to its customers. The tribunal adopted a cautious approach towards retroactive target discounts, ruling that such pricing schemes could be condemned even if an equally efficient competitor was not excluded by the target discount and the level of market foreclosure was limited.
The attorney general (AG) recently submitted his opinion regarding the applicability of the excessive pricing prohibition under Israeli law and the appropriate test for its application. Adopting the Israeli Competition Authority's current opinion regarding excessive pricing while opposing the broad approach taken by the court in the Central Bottling Company case, the AG maintained that the Supreme Court should determine that the Competition Law prohibits monopolists from setting unfairly high prices.
The Israeli Competition Authority recently published several clarifications regarding the application of the Economic Competition Law 5748-1988 in light of the COVID-19 pandemic. The clarifications refer to three main issues – namely, collaboration arrangements between competitors, gun-jumping rules in merger cases and postponement of reports required under the Law for the Advancement of Competition in the Food Sector 2014.
In February 2019 the Israel Competition Authority (ICA) published for public consultation a draft amendment to Public Statement 1/16: Considerations of the Competition Commissioner in Determining the Amount of a Monetary Penalty. Following public comments on the draft amendment, the ICA has now published a final amended statement. As such, the ICA's new methodology for imposing monetary penalties has taken full effect.
The Israel Competition Authority recently published a draft amendment to the Antitrust Regulations (Registry, Publication and Reporting of Transactions) for public consultation. The draft includes significant and far-reaching changes regarding the scope of the transactions that will require merger approval by the competition commissioner, as well as the extent of the disclosure that will be required when filing merger notifications.
In January 2019 Parliament passed a comprehensive amendment to the Economic Competition Law 1988. Among other things, the amendment introduced an alternative definition of a 'monopoly' based on a market power test rather than market share and significantly increased the maximum cap for monetary administrative penalties which can be levied on corporations. To put the new rules into practice, the Israel Competition Authority recently published draft guidelines on both of these matters.
Parliament recently passed an amendment to the Economic Competition Law that represents its most significant overhaul since its enactment in 1988. The amendment covers nearly all of the law's substantial chapters and affects the regulation of restrictive arrangements, the merger control regime, the regulation of monopolies and criminal and administrative enforcement measures.
The Israel Competition Authority recently published amended versions of the Block Exemption for Ancillary Restraints in Mergers and the Block Exemption for Joint Ventures. The amended block exemptions intend to lower the regulatory burden imposed on businesses and enable the fast implementation of efficient arrangements by expanding the use of block exemptions.
In recent years, parallel and private imports have become an important factor in the public debate surrounding the cost of living in Israel. The level of competition (and ultimately prices) in many product markets is heavily dependent on imports. The recent amendment to the Restrictive Trade Practices Law aims to provide the antitrust commissioner with the authority to prevent conduct by official importers that may hinder competition from parallel and private imports.
The Israel Antitrust Authority (IAA) recently published the Antitrust Rules (Joint Loans Block Exemption) 2018. The exemption deals with loans extended jointly by a number of financial institutions to a single business borrower and provides a more formal and broader framework than the IAA's previous policy of periodic public opinions, which exempted consortium arrangements from restrictive enforcement under certain conditions.
The Israel Antitrust Authority recently published a draft amendment to the Vertical Block Exemption for public comment. The amendment aims to expand the substantive self-assessment of vertical arrangements and was published as a response to Supreme Court rulings which called for a more lenient approach to vertical arrangements and practitioner criticism of the current exemption. The amendment reflects a more general trend in Israeli antitrust law towards a substantive self-assessment regime.
The Antitrust Authority recently published a draft amendment to the Restrictive Trade Practices Law for public comment. The amendment proposes a broad reform of the law as regards restrictive arrangements, monopolies and mergers. According to the authority, the amendment aims to decrease the existing regulatory burden that applies to legitimate and efficient practices and strengthen anti-competitive enforcement.
The Supreme Court recently confirmed that Regulation 500(7) of the Civil Procedure Regulations, which concerns court approval for service outside Israel, is not met where the alleged act or omission occurred outside Israel and only the anti-competitive effects are alleged to have taken place in Israel. The court further ruled that the effects doctrine – the governing doctrine for applying local antitrust law to foreign conduct – pertains only to the substantive applicability of such law to foreign conduct.
The antitrust commissioner recently announced her intention to impose unprecedented financial sanctions on several monopolies and market leaders in Israel, as well as some of their senior officers. These announcements indicate that the use of financial sanctions to combat the abuse of a dominant position will likely play a key role in the Israel Antitrust Authority's agenda for the coming years.
The Israel Antitrust Authority recently published draft guidelines on resale price maintenance arrangements, following a Supreme Court decision that fundamentally changed the legal standard applicable to vertical arrangements. The draft guidelines survey the main concerns arising from resale price maintenance arrangements, the competition benefits that they may produce and the general methodology that should be used to analyse such arrangements.
The Israel Antitrust Authority (IAA) recently concluded its initial re-evaluation of its policy on the prohibition on excessive pricing by monopolies and published draft guidelines on the factors that it will consider in enforcing the prohibition. The draft guidelines structure the IAA's decision-making process in enforcing the excessive pricing prohibition and are expected to reduce significantly the number of cases in which the IAA will take action on the grounds of excessive pricing.
The Israel Antitrust Authority (IAA) recently published draft guidelines on the factors that the IAA commissioner will consider when determining the financial sanction to be imposed on antitrust violators. The draft guidelines aim to structure the commissioner's decision-making process when determining financial sanctions while considering the specific circumstances of each case and offer a quantitative methodology in this regard.
The Israel Antitrust Authority (IAA) recently announced a public hearing and formal re-evaluation of the merits, enforceability and effectiveness of its policy regarding the prohibition on excessive pricing by monopolies. The announcement may result in a major overhaul of the IAA's policy regarding excessive pricing and the annulment of major portions of its guidelines on the issue.
The antitrust commissioner recently imposed a $2.3 million fine on Ashdod Port for providing retroactive discounts to vehicle importers that used its facilities. Discounting practices are generally welcome, but when undertaken by monopolies, some discounting schemes may contravene antitrust laws. Dominant firms are advised to check their pricing practices to avoid potential liability.
The Central District Court recently rendered a precedential decision in a claim brought by an Israeli manufacturer and distributor of generic pharmaceuticals against a multinational innovator pharmaceutical company. The decision dealt with challenges faced by the innovator pharmaceutical company in its attempts to prevent or delay the entrance of generic drugs into the market and raises questions regarding the interface between IP law and antitrust law.
The Supreme Court recently issued a landmark ruling in an appeal of the lower court's conviction of a large retail chain for breach of merger conditions and attempting to engage in a restrictive arrangement. In its analysis of the arrangement under review, the court outlined a new legal approach towards vertical arrangements, overturning a longstanding and highly criticised precedent.
The Israel Antitrust Authority recently published a memorandum that proposes the application of monopoly restrictions on businesses that hold a market share of less than 50% if they possess significant market power. A second recent memorandum aims to reduce barriers to imports by restricting the ability of an official importer to abuse its power and diminish competition from parallel imports.
The Israeli Antitrust Authority recently proposed significant reform of the merger control regime in an attempt to expand the application of merger controls in some respects, while decreasing the number of mergers that are subject to compulsory filing. The authority has also called for the imposition of special duties that are applicable only to monopolies and authorised distributors.
Parliament recently approved amendments to the Restrictive Trade Practices Law. The changes include the annulment of the mutual exclusivity exemption between suppliers and distributors. The changes should be closely monitored by foreign firms that operate in Israel, whether directly or through local representatives or distributors.
The Supreme Court recently published its ruling regarding an appeal filed by Azrieli Group – one of Israel's leading shopping mall groups – against an Antitrust Tribunal decision. The ruling halts a gradual erosion in the scope of judicial review over decisions of the general director of the Israel Antitrust Authority.
In recent months a series of new laws focusing on the competitiveness of the Israeli economy have been implemented. The Advancement of Competition in the Food Sector Law 2014 and the Advancement of Competition and Reduction of Concentration Law 2013 have both introduced drastic and far-reaching regulations that will significantly affect the activities of many corporations in Israel.
Parliament recently passed the Advancement of Competition in the Food Sector Law. According to the law's explanatory notes, its main objective is to increase competitiveness in the food sector in order to reduce product prices for consumers. While this objective is noble, it is unclear whether the law will appropriately and effectively achieve it.
The Antitrust Authority recently published its Draft Guidelines on the Prohibition on Excessive Pricing by a Monopoly, reflecting a significant change in the authority's interpretation of the Restrictive Trade Practices Law. The antitrust commissioner has stated for the first time that charging excessive prices is deemed unfair pricing, and subsequently that this practice is deemed an abuse of a monopoly position.
The Antitrust Authority recently published a new block exemption that significantly reforms the supervision of restrictive arrangements in Israel. Going forward, ancillary restraints in vertical arrangements (except for minimum or fixed resale price maintenance) no longer require the prior approval of the Antitrust Tribunal or the antitrust commissioner, provided that such arrangement does not significantly harm competition.
The Antitrust Authority recently published draft guidelines for conducting due diligence in transactions that require the transfer of sensitive information. The guidelines confer ultimate discretion regarding the due diligence process - and the potential liability that comes with it - on the parties. Parties to a horizontal transaction should be especially cautious in order to avoid incurring significant antitrust liability.
Counselling on the appropriate bounds of information exchange and coordination between competing parties that wish to merge or act in a joint venture can be challenging for antitrust practitioners. Due to high levels of confusion, a lack of case law and the need for accurate advice, over the past few months the Antitrust Authority and the appellate court have provided some practical guidelines on this matter.
The food sector is facing radical new legislation aimed at increasing competition between food suppliers and among supermarkets. The proposed legislation will prohibit practices that could arguably be used by dominant suppliers to block expansion of smaller rivals, and empower the Antitrust Authority to order dominant retailers to divest existing supermarkets and ban their growth in certain locations.
The Antitrust Authority recently released its draft Antitrust Rules (Block Exemption for Non-horizontal Arrangements Without Price Restrictions). It is hoped that this draft exemption will herald a significant change in the way in which the Restrictive Trade Practices Law is enforced in relation to restrictive arrangements. At present, most restrictive arrangements require a specific exemption from the antitrust commissioner.
Parliament recently approved a legislative amendment to the 1988 Restrictive Trade Practices Act. The amendment will enable the antitrust commissioner to impose significant monetary payments unilaterally. This amendment is expected to increase the Antitrust Authority's enforcement powers significantly with regard to offences that are not hardcore cartel and bid-rigging violations.
During the past year, the Israeli antitrust regime has been undergoing near-constant change. Several governmental committees have been formed and a new antitrust commissioner has been appointed. There are early indications that the political, legal and personal changes that have occurred will lead to significant changes in the Israeli Antitrust Authority's enforcement policy.
The Israeli Parliament recently enacted a major reform of the Restrictive Trade Practices Law. The amendment provides the antitrust commissioner with new enforcement powers in an attempt to address the challenges posed by markets that demonstrate a tendency towards oligopolistic equilibrium. The amendment represents a major change in Israeli antitrust law and stands out from a global antitrust perspective.
The Antitrust Tribunal recently clarified the extraterritorial application of trade practices law. It based its decision on the effects doctrine, applying antitrust laws to offshore arrangements that may adversely affect competition in a local jurisdiction. In so doing, like many practitioners, the court ignored the previous Magrizo decision. It is likely that the effects doctrine will be the prevailing legal standard going forward.
Two of Israel's leading shopping centre firms recently announced their plan to merge. The Antitrust Authority reviewed the merger, which would create Israel's largest shopping centre firm, and approved it earlier this year, subject to the divestment of several shopping centres to a third party. The decision affords vital insight into how the authority treats 'two-sided platform' markets.
The Israeli Parliament recently repealed the longstanding statutory exemption for agreements held between shipping carriers, thereby subjecting such arrangements to possible antitrust scrutiny under the Restrictive Trade Practices Act 1988. The amendment may have far-reaching implications for the shipping industry in general and for foreign shipping carriers in particular.
While the Israeli Antitrust Authority (IAA) has been empowered to arrest suspects in antitrust investigations for years now, it had never made use of this power until recently. In the past, the IAA detained suspects for questioning, releasing them (sometimes subject to bail) after several hours of intense interrogation. Two recent cartel investigations in the bakeries market and the water counters segment mark a possible change to this policy.
The Antitrust Court recently issued a ruling upholding an Antitrust Authority decision that Bezeq, Israel's leading telecommunications company, had abused its dominant position by failing to take diligent measures to prevent potential harm to its competitors caused by a strike of its employees.
The Supreme Court recently issued a ruling upholding an Antitrust Authority decision to block a merger in the telecommunications industry due to potential competition concerns. The new ruling, which reversed the Antitrust Court's previous decision to clear the merger, provides important guidance on the implementation of the 'potential competition doctrine', particularly in the telecommunications markets.
The antitrust commissioner recently made a declaratory decision pursuant to Section 43(a)(1) of the Antitrust Law, according to which information exchanges concerning fees that were allegedly held between five major banks in Israel constituted an illegal restrictive arrangement. The decision seems to apply an 'illegal per-se' approach to information exchanges made in oligopolistic markets.
Mergers that meet certain threshold requirements are subject to a mandatory pre-notification process and require approval from the antitrust commissioner. In 2006 the commissioner blocked a transaction planned by Israel's leading telecommunications firm on account of it eliminating a potential source of competition in the market. The Antitrust Court recently overturned this decision.
The antitrust commissioner has the power to request any information that it deems necessary for the proper implementation of the Antitrust Law. A recent decision gives important guidance on the application of the Freedom of Information Act to sensitive business data submitted by firms to the Antitrust Authority through notification forms, responses to data requests or voluntary submissions.
In 2006 Parliament amended the antitrust law and annulled the antitrust immunity that had been granted to agreements between air carriers. When the amendment comes into effect, almost all air carrier agreements will become subject to licensing requirements. To avoid these requirements, the antitrust commissioner recently published the Block Exemption for Agreements between Air Carriers.
In many Israeli markets local demand can sustain the effective activities of only a few companies. A recent proposed amendment to the Antitrust Act, endorsed by the Israeli Antitrust Authority, presents far-reaching changes with respect to regulation in sectors lacking a significant number of competitors.
An overwhelming majority of antitrust cases involving monopolies refer to active conduct which can be directly attributed to the dominant firm. Until recently, Israeli law did not address (at least directly) the question of whether and to what extent a monopolist has an obligation to take action to prevent possible damage to competition.
Can a lawyer immunize clients from criminal charges by giving a legal opinion stating that the client’s desired actions are lawful? In two recent decisions the Israeli Supreme Court ruled that if certain conditions are met, a bona fide reliance on legal opinion can serve as a defence against criminal proceedings.
In what circumstances is a merger transaction involving foreign companies subject to prior notification to, and approval from, the Antitrust Authority? New guidelines suggest that certain international mergers may fall within the scope of the Antitrust Law, even if the merging companies conduct their business in Israel solely through independent local representatives or distributors.
A recent court decision illustrates the broad scope of criminal liability for antitrust offences under Israeli law and the degree of severity attributed to such offences by the Israeli courts. This decision emphasizes the fact that both corporations and individuals conducting business in Israel are exposed to liability for antitrust infringements.