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Client updates / Competition Law and Antitrust
In December 2021, the Jerusalem District Court dismissed two motions to certify a class action against the leading dairy manufacturer in Israel, Tnuva, for charging excessive prices. Both the motion and the dismissal are part of an intense dispute for years. The dispute revolves around whether the prohibition of a monopolist charging an “unfair” price applies to charging excessive fees. In 2014, the director-general of the Competition Authority published a public statement on the prohibition of excessive pricing by a monopoly.
For the first time, the Israel Competition Authority has opened enforcement proceedings against a monopolist for abuse of its dominant position by charging an unfairly high price. Subject to a hearing, the authority intends to impose a pecuniary sanction of ILS 8 million on MBI Pharma Ltd. and personal sanctions on two officers of the company (of about ILS 600,000 each). The company faces accusations of charging an excessive price for Leadiant, a life-saving drug for CTX patients (an incurable genetic disease), which is marketed by MBI Pharma in Israel.
The block exemption for non-horizontal arrangements recently underwent a significant change. Beyond changing the name of the block exemption to “Rules of Economic Competition,” a significant amendment was introduced relating to the issue of price restraints in vertical arrangements.
When competing entities join forces to submit a tender offer, it reduces the overall number of entities competing for a tender. Reducing the number of competing entities may increase the market power of those participating entities against the tender holder and enable them to make less attractive offers.
On December 30, 2020, the Israel Competition Authority (ICA) notified SOS, a company in the field of fueling services, it was imposing a financial sanction of NIS 6.3 million on the company. In addition, it imposed a financial sanction of NIS 350,000 on an executive officer in the company. Following a complaint an SOS competitor filed with the ICA, the ICA concluded SOS had entered into exclusivity agreements with its clients. The company also implemented a policy whereby it would not provide fueling services to a client if the client simultaneously engaged with a competing fuel service provider.
Six months after the amendment to the Economic Competition Law took effect, the Competition Authority published its position regarding the circumstances in which even an entity with less than a 50% market share may be deemed a "monopoly holder."
On January 1, 2019, Israel's parliament approved an amendment to the Restrictive Trade Practices Law. This amendment seeks to deepen and focus the Antitrust Authority’s efforts to prevent activities posing potential harm to competition and to the public.
Two important block exemptions have been updated recently: the exemption for joint ventures and the exemption for restraints ancillary to mergers. The amendments transfer the examination of the intensity of the harm to competition deriving from these arrangements from the Israel Antitrust Authority to the business sector.
An amendment to a block exemption for non-horizontal arrangements with no particular price restrictions was recently approved. The purpose of the amendment to the block exemption is to clarify the term “competitors,” which was defined in a general and vague manner in the original block exemption.
Recently, the Israel Antitrust Authority (IAA) published a memorandum of law entitled “Strengthening Enforcement and Reducing the Regulatory Burden.” At issue is a comprehensive amendment to the Restrictive Trade Practices Law.
Recently, the Israeli Antitrust Authority (IAA) published a final version of its statement regarding Resale Price Maintenance (RPM) arrangements. In this statement, the IAA presents its position with regard to the circumstances under which a supplier is able to dictate the resale price of its products to its distributor (either retail or wholesale) for the next link in the supply chain, without such an arrangement being considered an illegal restrictive arrangement.
The Israel Antitrust Authority (‘’IAA’’) has announced its intention to impose a financial sanction in the sum of NIS 25,640,000 on Bitan Wines, due to its violation of the terms of the merger between Bitan Wines and the Mega supermarket chain.
The Antitrust Authority published for public comments a new guidelines draft on the subject of information-sharing between competitors for the purpose of contending with cyber threats.
Despite the growing sensitivity to violations of the competition laws and the uptrend in the imposition of stricter penalties by the authorities in respect thereof, business managers and consumers who have fallen victims to competition-law offenses in Israel hesitant in instituting civil proceedings against offenders.
A few days ago, the Israeli Antitrust Authority published a draft statement presenting its position with regard to the circumstances under which a supplier will be able to dictate the resale price of its products to its distributor for the next link in the supply chain (Resale Price Maintenance arrangements – RPM), without such an arrangement being considered an illegal restrictive arrangement.
A customary practice in the credit market makes the provision of financing for a corporation contingent upon the creation of a floating charge on all of its assets in favor of the financier. In most instances, the bond terms relating to the lien also include a ”negative pledge” – a restrictive stipulation that prohibits a corporation from creating additional liens without receiving the financier’s prior written approval.