S.I. No. 49/1973 - Restrictive Practices (Groceries) Order, 1973.

S.I. No. 49 of 1973.

RESTRICTIVE PRACTICES (GROCERIES) ORDER, 1973.

I, PATRICK J. LALOR, Minister for Industry and Commerce, having considered a report of the Restrictive Practices Commission under section 5 of the Restrictive Practices Act, 1972 (No. 11 of 1972), into the conditions which obtain in regard to the supply and distribution of certain grocery goods for human consumption and thinking that the exigencies of the common good so warrant, hereby, in exercise of the powers conferred on me by section 8 of the said Act, order as follows:—

1. This Order may be cited as the Restrictive Practices (Groceries) Order, 1973.

2. In this Order—

"the Examiner" means the Examiner of Restrictive Practices;

"grocery goods" means grocery goods for human consumption (excluding fresh fruit, fresh vegetables, fresh and frozen fish, fresh milk, fresh cream, ice cream, intoxicating liquors, mineral waters and non-alcoholic fruit drinks);

"retailer" means a person who resells grocery goods to the public;

"supplier" means a manufacturer or importer of grocery goods for sale to wholesalers or retailers and includes any person who processes, blends, cans, packs or otherwise prepares grocery goods for sale to wholesalers or retailers and also includes any person who acts as the sole distributor of such persons products to wholesalers or retailers;

"wholesaler" means a person who purchases grocery goods from a supplier for resale to retailers.

3. (1) ( a ) A supplier shall prepare and maintain a statement in writing containing the terms and conditions upon and subject to which he sells grocery goods (including supplementary terms, if any, and, if he grants credit in respect of the purchase price of any grocery goods, the terms and conditions of such grant), and the supplier shall effect a sale of grocery goods of any kind to wholesalers or retailers upon and subject to those terms and conditions (in so far as they apply in relation to that sale of that kind of goods).

( b ) Where a statement under this Article in relation to supplementary terms contains a general indication of the nature and extent of those terms, the statement shall be deemed, in so far as those terms are concerned, to comply with the provisions of this Article.

(2) The terms and conditions aforesaid may make provision for discounts of different amounts on the price of goods sold related to—

( a ) the different functions in relation to the sale and distribution of the goods performed by purchasers of the goods, or

( b ) the quantity or value of the goods.

(3) If the terms and conditions aforesaid make provision for the allowance of discounts to persons on the prices of goods sold related to the quantity or value of the goods—

( a ) they shall, in the case of discounts related to the quantity or value of single deliveries of goods to purchasers, provide for variations in the rates of discounts which take reasonable account of the costs of such deliveries and of the different costs of different deliveries, and

( b ) they shall, in the case of discounts related to the quantity or value of a number of purchases of goods by the same purchaser over a period of time, provide for variations in the rates of discount which take reasonable account, not only of the quantity or value of the goods which the supplier sells to the purchaser, but also of the number (if any) of places to which the supplier is required to deliver the goods and the frequency of any such deliveries, and

( c ) they shall not provide for any variations in the rates of discounts to any persons by reference to sales of goods to those persons by other suppliers, whether the other suppliers are members of any trade association or not.

(4) The terms and conditions aforesaid shall be reasonable, having regard to all the circumstances, and shall not be such as unfairly or unjustly—

( a ) to cause, by their operation, the cesser of the business of a wholesales or retailer,

( b ) to prevent a person from commencing business as a wholesaler or retailer, or

( c ) to discriminate against any wholesalers or retailers.

(5) ( a ) In this Article "supplementary terms" means any terms or conditions aforesaid providing for a rebate or discount in relation to the amount payable in respect of the sale of any grocery goods by a supplier to a wholesaler or retailer or an allowance by a supplier to a wholesaler or retailer, in consideration of—

(i) the making of purchases by the wholesaler or retailer from the supplier of those goods in excess of specified quantities over a specified period of time, or

(ii) the promotion of sales of those goods by means of special arrangements carried out for a limited period by or on behalf of the wholesaler or retailer.

( b ) Where the terms and conditions aforesaid include supplementary terms—

(i) any discounts, rebates or allowances for which such terms and conditions (including supplementary terms) make provision shall not be substantially bigger than the discounts, rebates or allowances for which the terms and conditions aforesaid other than the supplementary terms make provisions, and

(ii) the supplementary terms shall be terms determined by reference to objective criteria, and, in particular, any rebates, discounts or allowances of a kind referred to in subparagraph (a) (i) of this paragraph for which they make provision shall be related, as closely as circumstances allow, to percentage increases in purchases of the goods concerned by wholesalers and retailers,

(iii) if the supplementary terms relate to the promotion of sales in the manner specified in subparagraph (a) (ii) of this paragraph, they may be made available to different wholesalers and retailers at different times within a period which is of reasonable duration having regard to all the circumstances.

( c ) A supplier shall furnish to the Examiner such information as the Examiner may from time to time request in relation to any supplementary terms referred to in a statement prepared pursuant to this Article.

4. (1) A supplier shall furnish to the Examiner a copy of the statement prepared by him pursuant to Article 3 of this Order within one month after the commencement of this Order or within one month of his commencing business as a supplier, whichever is the later.

(2) A supplier shall furnish to the Examiner a copy of any amendment of the statement lodged by him with the Examiner under paragraph (1) of this Article within 14 days after the date of the making of the amendment.

(3) A supplier shall, if requested by a person carrying on or proposing to carry on business as a wholesaler or retailer, furnish to the person, within one month after the date of the making of the request, a copy of the statement prepared by him pursuant to Article 3 of this Order together with any amendments thereof.

5. If the Examiner is satisfied that the operation by a supplier of the terms and conditions contained in the statement prepared by him pursuant to Article 3 of this Order constitutes unfair discrimination in favour of or against any wholesaler or retailer or any section of the trade comprising the business carried on by wholesalers and retailers, the supplier shall, at the request of the Examiner, make such amendments of the terms and conditions aforesaid as may be specified by the Examiner, being amendments calculated to eliminate the unfair discrimination.

6. (1) A retailer shall not advertise or cause to be advertised for sale grocery goods at a price that (after the deduction of the cost to the retailer of any discount or other benefit given by him on a sale of the goods) is less than the price (after the deduction of any discount received by the retailer) at which he purchased the goods.

(2) Paragraph (1) of this Article does not apply in relation to the advertising of goods at the place where they are on sale.

7. (1) A person who is a wholesaler or retailer shall not, whether by the use of threats or inducements or otherwise, induce a supplier to sell grocery goods to him on and subject to terms or conditions other than those contained or referred to in the statement prepared by the supplier pursuant to Article 3 of this Order.

(2) Nothing in this Article shall be construed as prohibiting a wholesaler or retailer from requesting a supplier to amend, vary or delete any of the terms or conditions contained or referred to in the statement prepared by the supplier pursuant to the said Article 3.

8. (1) Subject to paragraph (2) of this Article, a wholesaler or retailer who purchases grocery goods outside the State and imports them into the State for sale shall, within 14 days after such importation, furnish to the Examiner a statement containing the terms and conditions upon and subject to which the goods were purchased and imported.

(2) It shall not be necessary for a wholesaler or retailer to furnish a statement to the Examiner under this Article in relation to goods purchased outside the State and imported into the State for sale if the goods are of the same kind as other goods in respect of which such a statement has been furnished to the Examiner by the wholesaler or retailer and the terms and conditions on which the first-mentioned goods were purchased and imported are the same as those contained in the statement furnished as aforesaid.

9. A supplier shall not make any payment or allowance to a person who is a wholesaler or retailer, or give a reduction of or discount on the price of grocery goods sold to that person by him, or give to that person any other benefit, in consideration of the carrying out by that person of advertising of the goods aforesaid.

10. Where grocery goods are offered for sale by a retailer at a price that appears likely to the Examiner to be less than the price at which the retailer purchased them, the Examiner shall, if he considers it necessary or desirable to do so, investigate the terms and conditions upon and subject to which they were purchased by the retailer.

11. Without prejudice to the rights of a retailer under any agreement, a supplier may—

( a ) refuse to sell to the retailer grocery goods of a particular kind, or

( b ) request a wholesaler to refuse to sell to the retailer grocery goods of a particular kind,

if the retailer has sold or offered for sale goods of that kind supplied by the supplier at a price that exceeded the maximum price for sale by retail of goods of that kind specified by the supplier, and the refusal may operate until the retailer undertakes to refrain from selling or offering for sale at a price exceeding the maximum price aforesaid goods of that kind supplied by the supplier.

12. (1) Subject to paragraph (2) of this Article, the Restrictive Trade Practices (Groceries) Order, 1956 ( S.I. No. 332 of 1956 ), and the Restrictive Trade Practices (Groceries) Order, 1956 (Amendment) Order, 1958 ( S.I. No. 163 of 1958 ), shall be extended so as to apply to grocery goods to which immediately before the commencement of this Order they did not apply.

(2) The said Restrictive Trade Practices (Groceries) Order, 1956, shall, in so far as it applies to grocery goods, have effect as if Articles 8, 9, 10, 11 and 14 (inserted by the said Restrictive Trade Practices (Groceries) Order, 1956 (Amendment) Order, 1958) were deleted.

GIVEN under my Official Seal, this 21st day of February, 1973.

PATRICK J. LALOR,

Minister for Industry and Commerce.

EXPLANATORY NOTE.

The effect of this Order is to prohibit certain restrictive and unfair practices in relation to the supply and distribution of grocery goods. The Order requires to be confirmed by an Act of the Oireachtas before it will have the force of law.