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(1) The arrangement has received consent of the Tribunal;
(2) The parties to the arrangement have received the Director General’s exemption
from the requirement to receive the consent of the tribunal;
(3) All the restraints in the arrangement shelter under one of the block exemptions
issued by the Director General, such as exclusive distribution, sole acquisition,
franchise agreements and more.
The RTP Law also specifies a list of arrangements that are not considered restrictive.
For example, an arrangement in which all restraints relate to the rights of use of a patent,
design, trademark, copyright, performers’ rights or developers’ rights, provided that two
conditions are met: (a) The arrangement is entered into by the proprietor of the asset
and the party receiving the right to use it; (b) If the asset is subject to registration by
law – it is so registered.
In general, the RTP Law is applied to arrangements that significantly affect the market in
Israel. It should be noted that its provisions also apply to arrangements made between
two foreign entities, where such an arrangement may have a significant effect on the
market in Israel.
Concentration Groups
An amendment to the RTP Law in 2011 provided the Director General with
unprecedented power to meet the challenges of oligopolistic markets.
The amendment allows the Director General to determine that a limited group of
entities conducting business and owning more than half of the total supply of an asset
or provision of a service constitutes a “Concentration Group”, where the following two
conditions are met:
(1) Among the members of the group or in the sector in which they operate there is
limited competition, or there exist conditions for limited competition;
(2) Taking certain measures may prevent harm or a risk of significant harm to the public
or to business competition, or could significantly increase the competition or create
conditions for significant increase in competition.
The Director General is also authorized to apply to the Tribunal to instruct a member
of a Concentration Group to sell its holdings in other parties in the group. A recent
amendment alsoallows theDirectorGeneral toapply to theTribunal to instruct amember
of a Concentration Group to sell an asset, if such sale may prevent damage, or eliminate
a risk of significant damage, to the public or to competition, or may significantly increase
competition in the sector.
First use of these powers wasmade in 2013,when the Director General determined that
two Sea Port companies in Israel constitute a concentration group. The Director General
instructed both companies, inter alia, not to expand their operations to additional port
platforms in Israel.
Having determined that a concentration group exists, the Director General is
empowered to remove entry barriers within the sector or switch barriers; to
terminate a particular activity of a group member if it facilitates coordination
between group members; and many other steps.