Restrictive Practices Act , 1972

1 Interpretation.

1.—(1) In this Act—

“the Act of 1953” means the Restrictive Trade Practices Act, 1953;

“the Act of 1959” means the Restrictive Trade Practices (Amendment) Act, 1959;

“the Commission” means the Restrictive Practices Commission established by section 2;

“fair practice rules” means rules under section 4;

“the Examiner” has the meaning assigned to it by section 13;

“the Minister” means the Minister for Industry and Commerce;

“service” includes any professional service but does not include—

(a) any service provided under a contract of employment,

(b) any service being banking business within the meaning of the Central Bank Act, 1971,

(c) the supplying of electricity,

(d) any transport service provided or operated by Córas Iompair Éireann,

(e) any air service or service ancillary thereto,

(f) any transport service provided by the holder of a licence under the Road Transport Act, 1932, or the Road Transport Act, 1933,

(g) any shipping service or any service provided by a harbour authority within the meaning of the Harbours Act, 1946, or by a pilotage authority constituted under the Pilotage Act, 1913,

(h) any service provided by a local authority within the meaning of section 2 of the Local Government Act, 1941.

(2) In this Act a reference to a section or schedule is to a section of, or schedule to, this Act unless it is indicated that reference to some other enactment is intended.

(3) In this Act a reference to a subsection, paragraph, subparagraph or other division is to the subsection, paragraph, subparagraph or other division of the provision (including a schedule) in which the reference occurs, unless it is indicated that reference to another provision is intended.

2 Restrictive Practices Commission.

2.—(1) Notwithstanding the repeals effected by section 26, the Fair Trade Commission shall continue in being but shall, from the passing of this Act, be known as the Restrictive Practices Commission and is in this Act referred to as the Commission.

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

(3) (a) Any enquiry under the Act of 1953 or the Act of 1959 by the Fair Trade Commission completed before the passing of this Act shall be deemed to be an enquiry by the Restrictive Practices Commission under section 5.

(b) Any enquiry under the Act of 1953 or the Act of 1959 by the Fair Trade Commission which is not completed at the passing of this Act shall be deemed to be an enquiry by the Restrictive Practices Commission under section 5.

3 Unfair practices.

3.—In the exercise of their functions under this Act the Commission and the Examiner shall have regard to the unfair practices listed in the Third Schedule.

4 Fair practice rules.

4.—(1) The Commission may, on the recommendation of the Examiner or at the request of an association representing persons engaged either in the supply and distribution of goods or in the provision of services, prepare and publish rules representing, in the opinion of the Commission, fair practice conditions with regard to the supply and distribution of such goods or the provision of such services.

(2) Before making fair practice 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 any representations may be made.

5 Enquiries by Commission.

5.—(1) (a) The Commission shall, on the recommendation of the Examiner or at the request of the Minister transmitted by the Examiner, and may, on application by any person whose request for an enquiry has been refused by the Examiner, cause an enquiry to be held—

(i) into the conditions which obtain in regard to the supply and distribution of any kind of goods or to one or more aspects of the supply and distribution of one or more kinds of goods,

(ii) into the conditions which obtain in regard to the provision of any service or to one or more aspects of the provision of one or more kinds of service, or

(iii) into one or more aspects of the operation of an order under section 8.

(b) The Commission may at the request of any person, made after publication of a notice under section 10 (4) of their intention to hold a special review, hold the special review by means of an enquiry, but where they decide not to hold the special review by means of an enquiry, shall inform the person who made the request of the reasons for their decision.

(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) 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 solely to establish matters of fact the public disclosure of which might materially injure the legitimate interests of any person.

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

(7) Where the Commission, having received a request from any person (being a person whose request for an enquiry has been refused by the Examiner) to hold an enquiry, decide not to hold the enquiry, they shall inform the person of the reasons for their decision.

6 Notice of enquiries and Examiner's reports.

6.—(1) The Commission shall give such notice as they think fit of a decision to hold an enquiry.

(2) A notice under this section shall include a statement that a report on matters relevant to the proposed enquiry has been made to the Commission by the Examiner under section 16 and that a copy of the report may be obtained from the Commission on application by an interested person.

(3) Subject to subsection (4), the Commission shall furnish a copy of a report referred to in subsection (2) to an interested person who applies therefor.

(4) A copy of a report furnished under subsection (3) shall not contain any confidential information on a matter of fact which in the opinion of the Commission might materially injure the legitimate interests of any person if the information is not essential to the full understanding of the report.

(5) A report referred to in subsection (2) shall be admissible in evidence at an enquiry under section 5.

7 Report of enquiry.

7.—A report made by the Commission under section 5 (other than a report of an enquiry under section 5 (1) (b)) shall—

(a) describe the conditions which obtain in regard to the supply or distribution of the goods concerned or in regard to the provision of the services concerned, in so far as those conditions come within the scope of the enquiry to which the report relates,

(b) state whether (and, if so, how) any of those conditions involves restrictive practices including arrangements, agreements or understandings which prevent or restrict competition or restrain trade or the provision of any service or involve resale price maintenance,

(c) state whether, in the opinion of the Commission, any interference with competition or trade or with the provision of services such as is mentioned in paragraph (b) above is unfair or operates against the common good,

(d) state whether, in the opinion of the Commission, any of those conditions involves practices (including arrangements, agreements or understandings) or methods of competition (whether or not relating to price) which are unfair or operate against the common good,

(e) give the reasons for the conclusions stated in the report, and

(f) state whether the Commission are of the opinion that the Minister should make an order under section 8 and indicate the form of order which they recommend.

8 Orders relating to restrictive practices, etc.

8.—(1) The Minister, having considered a report of the Commission under section 5 (other than a report of an enquiry under section 5 (1) (b)), may, if he thinks that the exigencies of the common good so warrant, after consultation with any other Minister concerned, by order do, in relation to any goods or services to which the report relates, all or any of the following—

(a) prohibit restrictive practices including arrangements, agreements or understandings which prevent or restrict competition or restrain trade or the provision of any service or which involve resale price maintenance;

(b) prohibit unfair practices or unfair methods of competition (whether or not relating to price);

(c) make such provision as the Minister thinks necessary to ensure the equitable treatment of all persons in regard to the supply or distribution of goods or the provision of services;

(d) make such other provision in regard to restrictive practices or unfair practices or unfair methods of competition (whether or not relating to price) affecting the supply and distribution of goods or the provision of services as he thinks fit.

(2) The Minister may by order revoke or amend an order under this section.

(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, as soon as possible after he has received the report, lay before each House of the Oireachtas a statement giving the reasons for his decision.

9 Enquiries into refusal to use particular materials or methods for certain purposes.

9.—(1) The Commission shall, whenever so requested by the Minister, cause an enquiry to be held into the refusal or alleged refusal by employers or employees (or any combination of employers or of employees or of employers and employees) to use particular materials or particular methods for manufacturing or construction purposes.

(2) Subsections (2) to (6) of section 5, and paragraph 8 of the First Schedule, shall have effect in relation to an enquiry under this section.

10 Special review of order under section 8.

10.—(1) The Commission shall, on the recommendation of the Examiner or at the request of the Minister transmitted by the Examiner, hold a special review of the operation of an order under section 8.

(2) The Commission, on the request of a person whose request for a special review has been refused by the Examiner, may hold a special review of the operation of an order under section 8.

(3) A special review may relate to the operation of an order as a whole or to particular aspects of the operation of an order.

(4) The Commission shall cause to be published in such manner as they think fit notice of their intention to hold a special review and shall give to any person desiring to make submissions in relation to the subject matter of the review an opportunity to do so and the notice shall specify the time and manner in which submissions shall be made.

(5) The Commission shall submit to the Minister a report of every special review and the report shall state whether any request was made to the Commission under section 5 (1) (b) and, if so, give the reasons for a decision not to accede to the request.

(6) Where the Commission are of opinion that the Minister should amend the order which is the subject of a special review, they shall in their report of the review recommend accordingly and indicate the form of amending order they recommend.

(7) Where the Commission are of opinion that the Minister should revoke the order which is the subject of a special review, they shall in their report of the review recommend accordingly.

11 Examination by Commission of Examiner's reports under section 16(4).

11.—The Commission shall examine every report furnished to them by the Examiner under section 16 (4) and shall give observations on the report to the Minister and may make recommendations to the Minister as to what action should be taken on the report.

12 Studies and analyses by Commission.

12.—In addition to the functions conferred on the Commission by sections 4, 5, 7 and 9 to 11, the Commission shall study and analyse (and report to the Minister when requested by him the results of any such study or analysis) the effect on the common good of methods of competition, types of restrictive practice, monopolies, the structure of any markets, amalgamation of, or acquisition of control of, bodies corporate, the operation of multi-national enterprises and relevant legislation, and a study or analysis under this section may either include or consist of a study or analysis of any development outside the State relating to any of the above matters.

13 Examiner of Restrictive Practices.

13.—(1) The Minister shall from time to time appoint a person who shall be known as the Examiner of Restrictive Practices and is referred to in this Act as the Examiner.

(2) The Second Schedule shall apply to the Examiner.

14 Powers of Examiner.

14.—(1) The Examiner may and, at the request of the Minister, shall—

(a) investigate any aspect of the supply or distribution of goods or of the provision of a service,

(b) investigate any aspect of the operation of an order under this Act,

(c) investigate in the State any aspect of the supply or distribution of goods or the provision of a service by a person outside the State.

(2) The Examiner may investigate any aspect of the operation of fair practice rules.

15 Inspection of premises and records, etc.

15.—(1) For the purpose of obtaining any information necessary for the exercise by the Examiner of any of his functions under this Act, an authorised officer may, on production of his authorisation if so required—

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

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

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

(d) require a person mentioned in paragraph (b) to give to the authorised 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 its committee of management or other controlling authority) or employed in connection therewith,

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

(2) Before exercising any powers conferred on him by virtue of this section, an authorised officer shall inform the owner of premises referred to in subsection (1) (a) or a person mentioned in subsection (1) (b) (as the case may be)—

(a) of the powers of an authorised officer under this section, and

(b) of the owner's or other person's right under subsection (3) to apply for a declaration under this section.

(3) (a) The owner of premises which an authorised officer proposes to enter and inspect, or a person on whom an authorised officer has made a requirement under this section, may apply to the High Court for a declaration under this section.

(b) Where the owner of premises which an authorised officer proposes to enter and inspect, or a person on whom an authorised officer has made a requirement under this section, refuses access to the officer or refuses to comply with the requirement (as the case may be), the owner or other person shall within seven days thereafter apply to the High Court for a declaration under this section.

(c) The High Court, having heard such evidence as may be adduced and any representations that may be made by the Examiner and a person referred to in paragraph (a), may at its discretion declare that the exigencies of the common good do not warrant the exercise by the Examiner of the powers conferred on him by this section, and upon the making of such a declaration the Examiner shall either cease to effect the relevant entry or inspection or (as the case may be) withdraw the relevant requirement under this section.

(4) Subject to subsection (3) a person who obstructs or impedes an authorised officer in the exercise of a power conferred by this section or does not comply with a requirement under this section shall be guilty of an offence.

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

(6) In this section “authorised officer” means a person authorised in writing by the Examiner for the purposes of this section.

16 Reports by Examiner.

16.—(1) Where, as a result of an investigation under section 14 (1) (a), 14 (1) (b) or 14 (2), the Examiner is of the opinion that the Commission should hold an enquiry under this Act or a special review under section 10 or should make fair practice rules, he shall furnish the Commission with a report of the investigation containing a recommendation to that effect.

(2) Where the Examiner carries out an investigation under section 14 (1) (a) or 14 (1) (b) at the request of the Minister, his report, in lieu of being furnished to the Commission, shall be furnished by him to the Minister and shall contain such facts as the Examiner considers relevant but shall not contain any expression of opinion by the Examiner.

(3) If in a report of an investigation under section 14 (1) (b) the Examiner expresses the opinion that there has been a breach or contravention of an order under this Act, the report, in lieu of being furnished to the Commission, shall be furnished by him to the Minister.

(4) The Examiner may furnish the Commission with a report of an investigation under section 14 (1) (c) and shall do so if the investigation has been carried out at the request of the Minister.

(5) Where the Minister makes a request under section 5 to hold an enquiry or under section 10 to hold a special review, the Examiner shall furnish the Commission with a copy of the relevant report by him.