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31 1987

RESTRICTIVE PRACTICES (AMENDMENT) ACT, 1987

PART II

Amendment to Principal Act and to the Act of 1978

Fair Trade Commission and Director of Consumer Affairs and Fair Trade.

5. —(1) The Restrictive Practices Commission shall be known as the Fair Trade Commission.

(2) The office of Director of Consumer Affairs shall be known as the office of the Director of Consumer Affairs and Fair Trade and the holder of the office shall be known as the Director of Consumer Affairs and Fair Trade.

Transfer of functions of Examiner to Director.

6. —(1) The functions vested in the Examiner by the Principal Act and by section 10 of the Act of 1978 are hereby transferred to the Director.

(2) References to the Examiner in the Principal Act or in any order made thereunder and in section 10 of the Act of 1978 and in this Act, except where the context otherwise requires, shall be construed as references to the Director.

(3) Where, immediately before the commencement of this Act, any legal proceedings are pending to which the Examiner is a party and the proceedings have references to functions transferred by this section to the Director, the name of the Director, shall, in so far as the proceedings relate to any functions transferred by this section, be substituted in the proceedings for that of the Examiner or added in the proceedings, as may be appropriate, and the proceedings shall not abate by reason of such substitution.

(4) Anything commenced before the commencement of this Act by or under the authority of the Examiner may, so far as it relates tofunctions transferred by this section to the Director, be carried out and completed on or after such commencement by the Director.

(5) Every document granted or made in the exercise of a function transferred by this section shall, if and in so far as it was operative immediately before the commencement of this Act, have effect on and after such commencement as if it had been made by the Director.

Transfer of functions of Examiner to Commission.

7. —(1) The functions vested in the Examiner by the Act of 1978, other than by section 10 of that Act, are hereby transferred to the Commission.

(2) References to the Examiner in the Act of 1978 or in any order made thereunder, other than in section 10 of that Act, shall be construed as references to the Commission.

(3) Where, immediately before the commencement of this Act, any legal proceedings are pending to which the Examiner is a party and the proceedings have references to functions transferred by this section to the Commission, the name of the Commission, shall, in so far as the proceedings relate to any functions transferred by this section be substituted in the proceedings for that of the Examiner or added in the proceedings, as may be appropriate, and the proceedings shall not abate by reason of such substitution.

(4) Anything commenced before the commencement of this Act by or under the authority of the Examiner may, so far as it relates to functions transferred by this section to the Commission, be carried out and completed on and after such commencement by the Commission.

(5) Every document granted or made in the exercise of a function transferred by this section shall, if and so far as it was operative immediately before the commencement of this Act, have effect on and after such commencement as if it had been made by the Commission.

Orders relating to restrictive practices.

8. —(1) Notwithstanding anything in the Principal Act, whenever the Minister considers it expedient, in the interests of the orderly and proper regulation of competition, he may, after consultation with the Commission, the Director and any other Minister of the Government concerned, by order do, in relation to goods and services, 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 an Act of the Oireachtas but, upon being so confirmed, it shall have the force of law in accordance with its terms.

(4) A person who contravenes (whether by act or omission) any provision of an order under this section for the time being in force shall be guilty of an offence under the Principal Act and the offence shall be deemed for the purposes of section 23 of that Act to be an offence under that Act.

(5) Sections 5,10, 19, 22 and 24 of the Principal Act shall apply to an order made under this section.

Service provided under a contract of employment.

9. —Notwithstanding anything in this Act or in the Principal Act, the provision of a service, being a service provided under a contract of employment, may not be the subject of fair practice rules under section 4 of the Principal Act, an enquiry under section 5 of that Act, or an investigation under section 14 of that Act except with the prior approval in writing of the Minister given with the consent of the Minister for Labour.

Amendment of section 1 of Principal Act.

10. —Section 1 of the Principal Act is hereby amended by the substitution for the definition of “service” of the following new definition:

“‘service’ includes any professional service but does not include any service provided by a local authority within the meaning of section 2 of the Local Government Act, 1941 .”.

Amendment of section 4 of Principal Act.

11. —Section 4 of the Principal Act is hereby amended by the insertion in subsection (1) after “may” of “on their own initiative or”, and the said subsection (1), as so amended, is set out in the Table to this section.

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(1) The Commission may, on their own initiative or 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.

Amendment of section 5 of Principal Act.

12. —Section 5 of the Principal Act is hereby amended by the substitution of the following paragraph for paragraph (a) of subsection (1):

“(a) The Commission shall, on the recommendation of the Examiner or at the request of the Minister, and may, on the application by any person whose request for an enquiry has been refused by the Examiner or on their own initiative, 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 aspectsof 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.”.

Amendment of section 6 of Principal Act.

13. —Section 6 of the Principal Act is hereby amended by the substitution of the following subsection for subsection (2):

“(2) Where a report has been made by the Director to the Commission under section 14 of this Act on matters which, in the opinion of the Commission, are relevant to a proposed enquiry, a notice given under subsection (1) of this section shall include a statement that a copy of the report may be obtained from the Commission on application by an interested party.”.

Amendment of section 8 of Principal Act.

14. —Section 8 of the Principal Act is hereby amended by the substitution of the following subsection for subsection (4):

“(4) If the Commission, in a report to the Minister, recommend the making of an order and if at the expiration of a period of twelve months after he has received the report the Minister has not made the order, he shall, within twenty-one days after the said period, lay before each House of the Oireachtas a statement in writing giving the reasons why he has not made the order.”.

Amendment of section 10 of Principal Act.

15. —Section 10 of the Principal Act is hereby amended by the substitution in subsection (1) of “, and may, on their own initiative” for “transmitted by the Examiner”, and the said subsection, as so amended, is set out in the Table to this section.

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(1) The Commission shall, on the recommendation of the Examiner or at the request of the Minister, and may, on their own initiative, hold a special review of the operation of an order under section 8.

Amendment of section 12 of Principal Act.

16. —The Principal Act is hereby amended by the insertion in section 12 of the following subsections:

“(2) The Commission may, for the purpose of their functions when conducting a study or analysis under this section, require any person to produce to the Commission any document in his power or control or to give to the Commission any information which the Commission may reasonably require.

(3) Any person who refuses to produce any document in his power or control or to give to the Commission any information which the Commission may reasonably require shall, subject to subsection (4), be guilty of an offence.

(4) (a) Any person of whom a requirement has been made under subsection (2), may apply to the High Court for a declaration under this section.

(b) Any person of whom a requirement has been made under subsection (2) and who refuses to comply with that requirement, may, within 7 days of such refusal, 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 Commission and a person referred to in paragraph (a) of this subsection, may, at its discretion, declare that the exigencies of the common good do not warrant the exercise by the Commission of the powers conferred on them by this section, and upon the making of such a declaration the Commission shall withdraw the relevant requirement under this section.”.

Amendment of section 14 of Principal Act.

17. —The Principal Act is hereby amended by the substitution of the following section for section 14:

“Powers etc. of Director.

14.—(1) The Director may and, at the request of the Minister or the Commission, 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 Director may investigate any aspect of the operation of fair practice rules.

(3) Where the Director carries out an investigation under subsection (1) of this section, at the request of the Minister or the Commission, he shall furnish a report of his investigation to the Minister or the Commission as appropriate.

(4) Nothing in this section shall prevent the Director from furnishing the Minister or the Commission with a report of any investigation carried out by him under this section.”.

Amendment of section 15 of Principal Act.

18. —Section 15 of the Principal Act is hereby amended by—

(a) the insertion in subsection (1) of section 15 after “functions” of “or the Commission of any of their functions” and the said subsection as so amended is set out in the Table to this section,

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(1) For the purpose of obtaining any information necessary for the exercise by the Examiner of any of his functions or the Commission of any of their 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 employedin 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 authorized officer any information which the officer may reasonably require in regard to such activity.

and

(b) the substitution of the following subsection for subsection (6):

“(6) In this section ‘authorised officer’ means a person authorised in writing by the Director or by a member of the Commission for the purposes of this Act.”.

Amendment oi section 18 of Principal Act.

19. —Section 18 of the Principal Act is hereby amended by the substitution of the following subsection for subsection (1):

“(1) The Minister shall lay before each House of the Oireachtas a copy of the report made by the Commission of every enquiry under section 5 or section 9 and of every special review under section 10 within four months of the receipt by him of such report.”.

Amendment of section 19 of Principal Act.

20. —Section 19 of the Principal Act is hereby amended by the insertion after “motion” of “of the Director or” and the section, as so amended, is hereby set out in the Table to this section.

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19. It shall be lawful for a court of competent jurisdiction to grant an injunction on the motion of the Director or of the Minister or of any other person to enforce compliance with the terms of an order under section 8 for the time being in force notwithstanding that any other proceedings, civil or criminal, may lie for that purpose.

Amendment of section 23 of Principal Act.

21. —The Principal Act is hereby amended by the substitution of the following section for section 23:

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

(a) on summary conviction, be liable to a fine not exceeding £500 (together with, in the case of a continuing offence, a fine not exceeding £50 for every day on which the offence is continued) or, at the discretion of the Court, to imprisonment for a term not exceeding six months or to both such fine and such imprisonment, or

(b) on conviction on indictment, be liable to a fine notexceeding £10,000 (together with, in the case of a continuing offence, a fine not exceeding £1,000 for every day on which the offence is continued) or, at the discretion of the Court, to imprisonment for a term not exceeding two years or to both such fine and such imprisonment.

(2) (a) Where 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 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 to a fine not exceeding £50 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 six 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.”.

Amendment of section 24 of Principal Act.

22. —Section 24 of the Principal Act is hereby amended by—

(a) the substitution in subsection (1) of “the Director” for “the Minister” and the subsection, as so amended, is set out in the Table to this section, and

(b) the substitution in subsection (2) of “eighteen months” for “twelve months”, and the subsection, as so amended, is set out in the Table to this section.

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(1) Summary proceedings in relation to an offence under this Act may be prosecuted by the Director.

(2) Notwithstanding section 10 (4) of the Petty Sessions (Ireland) Act, 1851, summary proceedings for an offence under this Act may be instituted within eighteen months from the latest day on which the offence was committed.

Amendment of First Schedule to Principal Act.

23. —The First Schedule to the Principal Act is hereby amended—

(a) in paragraph 5 by—

(i) the substitution in subparagraph (1) of “their terms” for “its terms”,

(ii) the deletion in subparagraph (1) of “non-contributory”,

(iii) the insertion in subparagraph (1) of “or schemes” after “scheme”,

(iv) the insertion in subparagraph (2) of “or schemes” after “scheme”, and

(b) in paragraph 9 by the insertion in subparagraph (1) of the words “or by any other Act conferring powers, duties and functions on the Commission” after “Act”,

and the said subparagraphs as so amended are set out in the Table to this section.

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5.(1) The Minister shall, with the consent of the Minister for Finance, as soon as may be make and carry out according to their terms a scheme or schemes for the granting of pensions, gratuities or other allowances to or in respect of members of the Commission ceasing to hold office other than members in respect of whom an award under the Superannuation Acts, 1834 to 1963, may be made.

(2) In the case of a member of the Commission who was appointed a member of the Fair Trade Commission on the 26th day of November, 1969, and who had before such appointment been a member of the Industrial Development Authority, a scheme or schemes under this paragraph shall provide for reckoning, as service as a member of the Commission, service by such person in a pensionable capacity as a member of the Industrial Development Authority.

9. (1) No person shall disclose information available to him by virtue of the powers of obtaining information conferred by this Act or by any other Act conferring powers, duties and functions on the Commission or through being present at a meeting of the Commission held in private.

Amendment of section 1 of Act of 1978.

24. —Section 1 of the Act of 1978 is hereby amended by the substitution for the definition of “service” of the following new definition:

“‘service’ includes any professional service, but does not include—

(i) any service provided by the holder of a licence under section 9 of the Central Bank Act, 1971 ,

(ii) any service provided by a trustee savings bank certified under the Trustee Savings Banks Acts, 1863 to 1965,

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

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

Amendment of section 8 of Act of 1978.

25. —Section 8 of the Act of 1978 is hereby amended by the insertion of the following subsection:

“(4) The Commission may, for the purpose of this section, delegate one or more of their members to carry out an investigation and to report thereon in accordance with this section and may make different delegations for different investigations and may revoke a delegation.”.

Amendment of section 13 of Act of 1978.

26. —Section 13 of the Act of 1978 is hereby amended by—

(a) the insertion in paragraph (a) of subsection (1) after “motion” of “of the Director or”, and the said paragraph, as so amended, is set out in the Table to this section, and

(b) the substitution in paragraph (a) of subsection (5) of “the Director” for “the Minister”, and the said paragraph as so amended is set out in the Table to this section.

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(1) (a) It shall be lawful for a court of competent jurisdiction to grant an injunction on the motion of the Director or of the Minister or of any other person to enforce compliance with the terms of an order under section 9 or 11 for the time being in force.

(5) (a) Summary proceedings in relation to an offence under this section may be prosecuted by the Director.