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.
The draft statement comes in the wake of the precedent set about a year and a half ago by the Israeli Supreme Court in the Shufersal judgment (AR 5823/14).
Until the judgment was handed down, RPM arrangements in Israel had been trapped within the scope of the peremptory presumption of being restrictive arrangements. This meant that many vertical arrangements (i.e. arrangements between non-competitors such as supplier-distributor), including RPMs, deemed unlawful restrictive arrangements - even if they did not pose any substantive harm to the competition - unless the arrangements had been permitted through one of the mechanisms prescribed in the Israeli Restrictive Trade Practices Law.
According to the Shufersal judgment, RPMs will be examined according to the extent of their probable impact on competition. In other words, vertical arrangements having no potential restraining or curbing effect on competition will no longer be classified as restrictive arrangements, even if such arrangements concern matters included in the law's peremptory presumptions.
The purpose of the Antitrust Authority's recent statement is to clarify how it will be examining RPM arrangements and to make it clear that it will be examining RPM arrangements more meticulously than other vertical pricing arrangements.
The draft statement outlines the "rules of thumb" to be applied when examining whether RPM arrangements could potentially harm competition. According to the statement, an RPM arrangement will not be deemed a restrictive arrangement if the arrangement does not raise concerns of a probable adverse impact on competition in the specific market relevant to the parties, and furthermore, that the RPM serves a clear...