Supreme Court Rules on Economy Minister's Bid to Dismiss Competition Commissioner
The Supreme Court has ruled that Economy Minister Nir Barkat's request to dismiss Competition Commissioner Michal Cohen must be reviewed by the Civil Service Commissioner, subject to election period restrictions.
The Supreme Court, sitting in an expanded panel of five justices for a further hearing on petitions regarding Economy Minister Nir Barkat's bid to dismiss Competition Commissioner Michal Cohen, has ruled that the minister's request must be referred back to the Civil Service Commissioner. The commissioner will be required to handle the matter in accordance with guidelines laid down by the justices. Concurrently, it was clarified that at this time, advancing the dismissal procedure remains subject to rules and restrictions governing election periods, which is expected to prevent the commissioner's removal for now.
The Competition Commissioner serves as a central regulator protecting the Israeli economy and consumers, holding one of the most senior positions in the civil service. The established rule is that terminating her tenure prematurely can only be carried out under narrow, well-defined grounds, and strictly upon the recommendation of the appointments committee, accompanied by legal counsel.
Cohen was appointed in 2022 to a six-year term, but in early 2024, Minister Barkat approached the commissioner requesting that he convene the appointments committee to voice its opinion regarding the termination of the commissioner's tenure ahead of schedule. Among other arguments, the minister cited "a severe and ongoing crisis of trust with her."
However, the Civil Service Commissioner responded that "there is no legal grounds to convene the committee to discuss the minister's request to terminate the commissioner's tenure, in the absence of a preliminary factual basis supporting the minister's request."
The issue reached the Supreme Court following a petition filed by the right-wing NGO Lavi. The core legal question was whether the Civil Service Commissioner is under an obligation to order the convening of the appointments committee to deliberate on the Minister of Economy's request to terminate Cohen's tenure.
In its initial ruling, a majority of the Supreme Court held that the commissioner alone does not possess the authority to refuse to convene the committee upon the minister's request. Subsequently, a motion for a further hearing was accepted, and it was determined that the proceedings would be brought before an expanded panel of five justices. The Supreme Court has now held an expanded further hearing on whether the Civil Service Commissioner is authorized to reject a minister's request outright without bringing it before the committee.
Expanded Panel Ruling and Preliminary Rejection Mechanism
The court unanimously ruled today that in cases where a minister's request fails to disclose any preliminary grounds, or suffers from another distinct administrative flaw, the commissioner has the option to convene the committee to discuss the request in a summary preliminary proceeding, without the need to hear the parties orally, akin to a "summary dismissal."
In doing so, the Supreme Court added an "additional layer" to the majority approach in the underlying judgment, while reaffirming the ruling that the commissioner alone lacks the authority to dismiss the minister's request.
In the primary opinion delivered by Supreme Court President Yitzhak Amit, it was clarified that this outcome provides an appropriate response to weighty arguments raised by the Attorney General's Office concerning the fear of abuse in termination procedures for senior public officials and the creation of a "chilling effect" against them. All of this underscores the recognized need to ensure the independence and political neutrality of senior officeholders such as the Competition Commissioner, who wield significant enforcement and regulatory powers.
Justice Alex Stein concurred with the President's ruling, clarifying that this "additional layer" aligns with his opinion in the underlying judgment, according to which the committee as a whole must formulate and make a decision regarding the minister's request.
Vice President Noam Solberg also concurred with the outcome that the commissioner alone lacks the authority to prevent the convening of the committee, and agreed that the committee as a whole is authorized to conduct an expedited procedure and issue an immediate recommendation if it finds that a frivolous request has been submitted.
Divergent Views on Institutional Conduct
At the same time, Vice President Solberg added that the fact that it ultimately transpired that for some three years the minister was unjustifiably prevented from hearing the committee's recommendation requires drawing lessons. This applies both to the Attorney General's Office regarding its duty to accurately reflect the law to the executive branch and strictly maintain the distinction between the existing law and desired policy, and to the court concerning the management of similar proceedings in the future, emphasizing the presumption of administrative regularity and the principle of mutual respect between branches of government. Justice Stein joined the Vice President's remarks in this regard.
President Amit dissented from the Vice President's remarks, emphasizing that given the unprecedented nature of the proceeding—marking the first time the committee has been asked to examine the dismissal of an officeholder such as the Competition Commissioner—no fault lay in the caution exercised by the Attorney General's Office. As evidence, the unanimous outcome reached by the court embodies a significant evolution of the law.
Standards for a Crisis of Trust
Additionally, as part of the judgment, the Supreme Court addressed the legal interpretation of the termination ground concerning a "severe and ongoing crisis of trust," which stood at the heart of the Economy Minister's bid to dismiss the Competition Commissioner.
On this matter, a majority of four justices—President Amit alongside Justices Daphne Barak-Erez, Alex Stein, and Khaled Kabub—ruled that an assertion regarding the existence of such a crisis of trust cannot rest solely on the subjective feeling of the relevant minister. It must be supported by an objective, solid, and detailed evidentiary foundation demonstrating that the breakdown in trust stems from professional considerations. Vice President Solberg held a minority view that it was unnecessary to address this issue and thus refrained from taking a substantive stance.
