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Israel: Supreme Court Dismisses Petition to Order Withdrawal of Legislative Research Report

(June 13, 2014) Israel’s Supreme Court recently dismissed a petition by the Manufacturers Organization of Israel (MOI) to order the Knesset Information and Research Center (KIRC) to withdraw a report that it had made to the Knesset Joint Committee on Economic Affairs and Finance. (MOI v. Knesset- KIRC [in Hebrew], State of Israel: The Judicial Authority website (May 20, 2014).)

The MOI had wanted a report entitled “An Analysis of the Rise in Food Products’ Prices and an Evaluation of the Encouragement of Competitiveness in the Food Sector Bill, 5773-2013” (hereinafter the Report) withdrawn. It had been issued by the KIRC in connection with that bill. (Encouragement of Competitiveness in the Food Sector Bill, 5773-2013, Government Bill No. 770 [in Hebrew], The Knesset website.) The Court’s decision states that the report was published by the KIRC on January 6, 2014. (The report could not, however, be located by a search of the Knesset website at present.)

According to the MOI, the report was “superficial and inapplicable, contained methodological errors, used erroneous raw data, failed to provide some supporting data, and disregarded data that was relevant and essential for calculation” (MOI v. Knesset-KIRC, ¶ 2.). The MOI further argued that “reliance on the factual basis that appears in the report will cause huge and irreversible damage to the food-industry.” Specifically, it alleged that reliance on the report as a basis for regulatory activity for the reduction of food prices in Israel would result in minimizing profitability and even result in losses for the food industry in Israel. (Id.)

By the time the Supreme Court rendered its decision, however, the Knesset had already passed the bill into law. (Law for Encouragement of Competitiveness in the Food Sector, 5774-2014, Ministry of Justice website; for a summary of the Law, see Ruth Levush, Israel: New Law on Encouragement of Competition in the Food Sector, GLOBAL LEGAL MONITOR (May 30, 2014).)

Restating the Court’s traditional policy of judicial restraint in reviewing legislative procedures, Justice Uzi Fogelman recognized that MOI did not attack the legislative procedures that led to the passage of the law. ( MOI v. Knesset- KIRC, ¶ 3.) Instead, MOI requested that the report be withdrawn “so that it would not serve as a factual basis for the adoption of administrative decisions in the future or [in the course of evaluating] procedures [involving] primary legislation.” (Id.)

Nevertheless, according to Fogelman, the concern for future potential harm does not constitute a cause for judicial intervention. He determined that judicial review of administrative actions does not normally apply to administrative decisions when they are based on proper factual grounds. Nor does judicial review apply where affected persons are offered the right to be heard and present evidence on the potential harm associated with administrative actions that may be adopted in the future. (Id. ¶ 4.)

Except for rare and unusual cases, Fogelman held, the Court will refrain from exercising judicial review over the procedures used by an agency to adopt its future decisions, including the methods it uses to collect data for this purpose. Fogelman stated that it is possible that judicial review will become unnecessary if an agency accepts objections to a proposed decision; the right of opponents to be heard includes also the right to submit a professional opinion resulting in a different conclusion. The possibility of being heard makes judicial review at this time premature, Fogelman stated. (Id.)