No. 14/1953:

RESTRICTIVE TRADE PRACTICES ACT, 1953

ARRANGEMENT OF SECTIONS

1 Definitions.

2 Fair Trade Commission.

3 Unfair trade practices.

4 Fair trading rules.

5 Procedure.

6 Review of operation of rules.

7 Enquiries.

8 Report of enquiry.

9 Orders relating to restrictive practices.

10 General duties of Commission.

11 Jurisdiction of Court to grant injunction.

12 Contravention of Order.

13 Offences in relation to bodies corporate and unincorporated bodies.

14 Penalties.

15 Summary Proceedings.

16 Saver for exercise of statutory duty.

17 Expenses.

18 Short title.

FIRST SCHEDULE

SECOND SCHEDULE

AN ACT CONCERNING RESTRICTIVE TRADE PRACTICES IN REGARD TO THE SUPPLY AND DISTRIBUTION OF GOODS.

[7th May, 1953.]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:—

1.—In this Act—

"the Commission" means the Fair Trade Commission established by section 2;

"the Minister" means the Minister for Industry and Commerce.

2.—(1) There shall be a body to be known as the Fair Trade Commission.

(2) The provisions of the First Schedule shall apply to the Commission.

3.—For the guidance of the Commission a list of unfair trade practices is set out in the Second Schedule. The Schedule shall not be regarded as exhaustive and shall not limit the Commission in the exercise of their functions.

4.—(1) As respects any kind of goods the Commission may, on their own initiative or at the request of an association representing persons engaged in the supply and distribution of such goods, prepare and publish rules representing, in the opinion of the Commission, fair trading conditions with regard to the supply and distribution of such goods and, on their own initiative or at the request of an association representing persons rendering, in the course of carrying on any trade or business, any services affecting such or distribution, may also prepare and publish rules representing, in the opinion of the Commission, fair trading conditions with regard to the rendering of such services.

(2) Rules under this section are referred to in this Act as fair trading rules.

5.—(1) Before making fair trading rules the Commission shall cause to be published in such manner as they think fit notice of their intention to do so and shall give to any person desiring to make representations in relation to the making of the proposed rules an opportunity to do so; and the notice shall specify the time and manner in which representations are to be made.

(2) The Commission may prescribe the manner in which requests for the making of fair trading rules are to be made.

6.—The Commission shall keep under review the operation of fair trading rules and, if it appears to them that those rules are not being observed, report accordingly to the Minister.

7.—(1) The Commission may, on their own initiative, and shall, at the request of the Minister, cause an enquiry to be held into the conditions which obtain in regard to the supply and distribution of any kind of goods.

(2) Subject to subsections (3) and (4), an enquiry may be held by one or more of the members of the Commission delegated by the Commission for the purpose.

(3) An enquiry shall not, without the consent of the Minister, be held by a temporary member acting alone.

(4) Not more than one temporary member may act for the purpose of a particular enquiry.

(5) The Commission may, in the course of an enquiry in relation to the supply or distribution of any kind of goods, enquire into the conditions which obtain in regard to the rendering, in the course of carrying on any trade or business, of any services affecting such supply or distribution.

(6) An enquiry shall be held in public save in so far as, in the opinion of the member or members holding it, private sittings may be necessary to avoid any disclosure of confidential information which might materially injure the legitimate business interests of any person.

(7) The Commission shall submit to the Minister a report of every enquiry.

(8) Where the Commission, having received a request from any person to hold an enquiry, decide not to hold such enquiry, they shall inform that person of the reasons for their decision.

8.—(1) A report made by the Commission under section 6 or 7 shall—

( a ) describe the conditions which obtain in regard to the supply or distribution of the goods concerned and, where appropriate, the conditions in regard to the rendering, in the course of carrying on any trade or business, of any services affecting such supply or distribution;

( b ) state whether and, if so, how these conditions prevent or restrict competition or restrain trade or involve resale price maintenance;

( c ) state whether, in the opinion of the Commission, any such interference with competition or trade is unfair or operates against the public interest;

( d ) give the reasons for their conclusions.

(2) If the Commission are of opinion that the Minister should make an order under section 9, they shall in their report recommend accordingly and indicate the form of order that they recommend.

(3) ( a ) The Minister shall lay a copy of the report before each House of the Oireachtas.

( b ) It shall be lawful for the Minister after consultation with the Commission to omit from the copy any information contained in the report the publication of which would, in his opinion, materially injure the legitimate business interests of any person, if such information is not essential to the full understanding of the report.

( c ) The Minister shall lay before each House of the Oireachtas, together with the copy of the report, a statement indicating the general character of any information so omitted.

9.—(1) The Minister, having considered a report of the Commission under section 6 or 7, may, if he so thinks proper, after consultation with any other Minister concerned, by order do, in relation to goods to which the report relates, or any class or classes of such goods, all or any of the following:—

( a ) prohibit specified arrangements or agreements;

( b ) prohibit the withholding from any specified class of persons of supplies of goods or of services rendered in the course of carrying on any trade or business and affecting the supply or distribution of such goods;

( c ) prohibit the giving of specified preferences in regard to the provision of, or the placing of orders for the supply of, goods or the rendering of any such services;

( d ) prohibit the imposition of specified conditions in regard to the supply or distribution of goods or the rendering of any such services;

( e ) make such provision as the Minister thinks necessary to ensure the equitable treatment of all persons in regard to the supply or distribution of the goods concerned or the rendering of any such services and the avoidance of unfair practices;

( f ) make such other provision in regard to restrictive practices affecting the supply and distribution of goods or the rendering of any such services as he thinks fit.

(2) The Minister may by order revoke or amend an order under subsection (1).

(3) An order under this section shall not have effect unless it is confirmed by Act of the Oireachtas but, upon being so confirmed, it shall have the force of law in accordance with its terms.

(4) If the Commission, in a report to the Minister, recommend the making of an order and the Minister decides not to make any order, he shall lay before each House of the Oireachtas a statement giving the reasons for his decision.

(5) The Minister shall comply with subsection (4) within three months after he has received the report.

10.—The Commission shall keep under review the general effect on the public interest of restrictive practices in connection with the supply and distribution of goods and the rendering, in the course of any trade or business, of any services affecting such supply or distribution and the operation of orders under section 9 and may (and, if so requested by the Minister, shall) submit to the Minister a report on any such matter and their recommendations as to what action should be taken thereon.

11.—It shall be lawful for a court of competent jurisdiction to grant an injunction on the motion of the Minister or of any other person to enforce compliance with the terms of an order under section 9 for the time being in force notwithstanding that any other proceedings, civil or criminal, may lie for that purpose.

12.—(1) A person who contravenes (whether by act or omission) any provision of an order under section 9 for the time being in force shall be guilty of an offence.

(2) Every person who aids, abets, or assists another person, or conspires with another person, to do any thing (whether by way of act or of omission) the doing of which is declared by subsection (1) to be an offence shall himself be guilty of an offence.

13.—(1) Where an offence under this Act is committed by a body corporate or by a person purporting to act on behalf of a body corporate or an unincorporated body of persons, and is proved to have been so committed with the consent or approval of, or to have been facilitated by any default on the part of any person being, in the case of a body corporate, a director thereof, or, in the case of an unincorporated body, a member of the committee of management or other controlling authority thereof, that person shall also be guilty of the offence.

(2) ( a ) A body corporate may be sent forward for trial on indictment for an offence under this Act with or without recognisances.

( b ) On arraignment before the Central Criminal Court or the Circuit Court, the body corporate may enter in writing by its representative a plea of guilty or not guilty and if it does not appear by a representative appointed by it for the purpose, or, though it does so appear, fails to enter any plea, the court shall order a plea of not guilty to be entered and the trial shall proceed as though the body corporate had duly entered that plea.

( c ) A statement in writing purporting to be signed by the secretary of the body corporate to the effect that the person named in the statement has been appointed as the representative of the body for the purpose of this subsection shall be admissible without further proof as evidence that that person has been so appointed.

(3) Any summons or other document required to be served for the purpose or in the course of proceedings under this section on a body corporate may be served by leaving it at or sending it by post to the registered office of that body or, if there be no such office in the State, by leaving it at, or sending it by post to, the body at any place in the State at which it conducts its business.

14.—(1) Every person who commits an offence under this Act for which no special penalty is provided shall—

( a ) on summary conviction thereof, be liable to a fine not exceeding five hundred pounds (together with, in the case of a continuing offence, a fine not exceeding fifty pounds for every day on which the offence is continued) or, at the discretion of the Court, to imprisonment for a term not exceeding twelve months or both such fine and imprisonment, or

( b ) on conviction thereof on indictment, be liable to a fine not exceeding five thousand pounds (together with, in the case of a continuing offence, a further fine not exceeding five hundred pounds for every day on which the offence is continued) or, at the discretion of the Court, to penal servitude for a term not exceeding ten years or to imprisonment for a term not exceeding two years or to such fine and such penal servitude or imprisonment.

(2) ( a ) Where—

(i) a person is convicted of an offence under this Act by reason of his failure, neglect or refusal to comply with a provision in an order requiring him to perform a specified act within a specified period or before a specified date, and

(ii) the said act remains, after the date of such conviction, unperformed by him, such person shall be guilty of an offence and shall be liable on summary conviction thereof to a fine not exceeding one hundred pounds for each day, after the date of such first-mentioned conviction, on which the act remains unperformed by him or, at the discretion of the Court, to imprisonment for a term not exceeding twelve months.

( b ) An offence under this subsection shall be a continuing offence and accordingly fresh proceedings in respect thereof may be taken from time to time.

15.—(1) Proceedings in the District Court in relation to an offence under this Act may be brought and prosecuted by the Minister.

(2) Notwithstanding subsection (4) of section 10 of the Petty Sessions (Ireland) Act, 1851, summary proceedings for an offence under this Act may be instituted within twelve months from the date of the offence.

16.—This Act shall not apply to anything done in the exercise of statutory duty.

17.—The expenses incurred by the Minister or the Commission in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.

18.—This Act may be cited as the Restrictive Trade Practices Act, 1953 .

Section 2.

FIRST SCHEDULE

THE FAIR TRADE COMMISSION.

Construction.

1.—(1) The permanent members of the Commission shall consist of a chairman and not less than two and not more than four other members. They shall be appointed by the Minister.

(2) Whenever it appears to the Minister that a permanent member is temporarily unable to discharge his duties, the Minister may appoint a temporary member to act in his place during such inability or for such shorter period as the Minister thinks proper.

(3) The Minister may also appoint additional temporary members.

Members.

2.—(1) The term of office of a permanent member shall be fixed by the Minister when appointing him and shall not exceed five years.

(2) An outgoing permanent member shall be eligible for reappointment.

(3) Each member shall hold office on such conditions as may be fixed by the Minister after consultation with the Minister for Finance.

(4) A member may be paid such remuneration as the Minister, with the consent of the Minister for Finance, determines.

(5) The Civil Service Regulation Acts, 1924 and 1926, shall not apply to the office of member.

Restriction on interested person acting as member.

3.—If a member is personally interested in a particular matter with which the Commission is dealing, he shall inform the Minister accordingly and shall not act as a member during the consideration of the matter, unless the Minister, being of opinion that his interest is not such as to interfere with the impartial performance of his duties, authorises him to act.

Removals, resignation and disqualification.

4.—(1) The Minister may remove from office a member who has become incapable through ill-health of performing efficiently his duties as such member or whose removal appears to the Minister to be necessary in the interests of the effective and economical performance of the functions of the Commission.

(2) Where the Minister removes a member from office he shall lay before each House of the Oireachtas a statement in writing of the reasons for such removal.

(3) A member may resign his office.

(4) Where a member of the Commission becomes a member of either House of the Oireachtas, he shall, upon his becoming entitled under the Standing Orders of that House to sit therein, cease to be a member of the Commission.

(5) A person who is for the time being entitled under the Standing Orders of either House of the Oireachtas to sit therein shall be disqualified from being a member of the Commission.

(6) A member shall be disqualified for holding and shall cease to hold office if he is adjudged bankrupt, or makes a composition or arrangement with his creditors, or is sentenced by a court of competent jurisdiction to suffer imprisonment or penal servitude or ceases to be ordinarily resident in the State.

Procedure.

5.—(1) The quorum for a meeting of the Commission shall be two permanent members unless the Minister otherwise directs.

(2) The Commission may act notwithstanding vacancies in their membership.

(3) The Commission may regulate their own procedure.

Power of Commission to summon witnesses, etc

6.—(1) The Commission may for the purposes of their functions do all or any of the following things:—

( a ) summon witnesses to attend before them,

( b ) examine on oath (which any member is hereby authorised to administer) the witnesses attending before them,

( c ) require any such witness to produce to the Commission any document in his power or control.

(2) A witness before the Commission shall be entitled to the same immunities and privileges as if he were a witness before the High Court.

(3) A summons shall be signed by at least one member.

(4) If any person—

( a ) on being duly summoned as a witness before the Commission makes default in attending, or

( b ) being in attendance as a witness refuses to take an oath legally required by the Commission to be taken, or to produce any document in his power or control legally required by the Commission to be produced by him, or to answer any question to which, the Commission may legally require an answer, or

( c ) does any other thing which would, if the Commission were a court of justice, having power to commit for contempt of court, be contempt of such court,

the Commission may certify the offence of that person under their hands to the High Court and the court may, after such inquiry as it thinks proper to make, punish or take steps for the punishment of that person in like manner as if he had been guilty of contempt of that court.

(5) In this paragraph references to the Commission shall be construed as including references to a member or members holding an enquiry under section 7.

Notice of enquiry and submissions by interested persons.

7.—(1) The Commission shall cause to be published in such manner as they think fit notice of their intention to hold an enquiry.

(2) Any person may make a submission to the Commission in the manner prescribed by their rules in relation to the subject matter of an enquiry.

Inspection of premises and obtaining of information.

8.—(1) In this paragraph, "authorised officer" means a person authorised in writing by the Commission for the purposes of this paragraph.

(2) The authorisation of an authorised officer shall indicate the matters in respect of which he may act under this paragraph.

(3) For the purpose of obtaining the information necessary for the exercise by the Minister or the Commission of any function under this Act, an authorised officer is hereby authorised, on production of his authorisation, if so required—

( a ) at all reasonable times to enter premises at which any activity in connection with the business of supplying or distributing goods or in connection with the organisation or assistance of persons engaged in any such business is carried on and to inspect the premises;

( b ) to require the person who carries on such activity and any person employed in connection therewith to produce to the officer any books, documents or records relating to such activity which are in that person's power or control and to give him such information as he may reasonably require in regard to any entries in such books, documents and records;

( c ) to inspect and copy or take extracts from such books, documents and records;

( d ) to require such a person to give to the officer any information he may require in regard to the persons carrying on such activity (including, in particular, in the case of an unincorporated body of persons, information in regard to the membership thereof and of its committee of management or other controlling authority) or employed in connection therewith;

( e ) to require such a person to give to the officer any information which the officer may reasonably require in regard to such activity.

(4) A person who obstructs or impedes an authorised officer in the exercise of a power or does not comply with a requirement under this section shall be guilty of an offence.

Prohibition of disclosure of confidential information.

9.—(1) No person shall disclose information available to him by virtue of the powers of obtaining information conferred by this Act or through being present at a meeting of the Commission held in private.

(2) Subparagraph (1) of this paragraph does not apply to—

( a ) a communication made by a member of the Commission or authorised officer in the execution of his duties under this Act, or

( b ) the disclosure of information in a report of the Commission or for the purpose of legal proceedings under this Act.

(3) If any person contravenes this paragraph he shall be guilty of an offence and shall be liable on summary conviction thereof to a fine not exceeding one hundred pounds or imprisonment for a period not exceeding six months or, at the discretion of the Court, to both such fine and imprisonment.

Officers and servants.

10.—(1) The Minister, with the consent of the Minister for Finance, may appoint such officers and servants as he thinks necessary to assist the Commission in the performance of their functions.

(2) The officers and servants so appointed shall hold office on such terms and receive such remuneration as the Minister for Finance determines.

Annual Report.

Section 3.

SECOND SCHEDULE

UNFAIR TRADE PRACTICES.

Any measures, rules, agreements or acts whether put into effect or intended to be put into effect by a person alone or in combination or agreement, express or implied, with others or through a merger, trust, cartel, monopoly or other means or device whatsoever which—

( a ) have or are likely to have the effect of unreasonably limiting or restraining free and fair competition, or

( b ) are in unreasonable restraint of trade, or

( c ) have or are likely to have the effect of unjustly eliminating a trade competitor, or

( d ) unjustly enhance the price of goods or promote unfairly the advantage of suppliers or distributors of goods at the expense of the public, or

( e ) secure or are likely to secure a substantial or complete control of the supply or distribution of goods or any class of goods unfairly or contrary to the public interest, or

( f ) without just cause prohibit or restrict the supply of goods to any person or class of persons or give preference in regard to the provision of, or the placing of orders for the supply of, goods, or

( g ) restrict or are likely to restrict unjustly the exercise by any person of his freedom of choice as to what goods he will supply or distribute or the area in which he will supply or distribute his goods, or

( h ) impose unjust or unreasonable conditions in regard to the supply or distribution of goods, or

( i ) exclude or are likely to exclude without good reason new entrants to any trade or industry, or

( j ) secure or are likely to secure unjustly the territorial division of markets between particular persons or classes of persons to the exclusion of others, or

( k ) in any other respect operate against the public interest or are not in accordance with the principles of social justice.