S.I. No. 294/1961 - Restrictive Trade Practices (Motor Spirit and Motor Vehicle Lubricating Oil) Order, 1961.

S.I. No. 294 of 1961.

RESTRICTIVE TRADE PRACTICES (MOTOR SPIRIT AND MOTOR VEHICLE LUBRICATING OIL) ORDER, 1961.

I, JOHN LYNCH, Minister for Industry and Commerce, having considered a report of the Fair Trade Commission of an enquiry under section 7 of the Restrictive Trade Practices Act, 1953 (No. 14 of 1953), into the conditions which obtain in regard to the supply and distribution of motor spirit and motor vehicle lubricating oil with special reference to exclusive dealing arrangements in the retailing of these products, in exercise of the powers conferred on me by section 9 of the said Act, hereby order as follows:

1. This Order may be cited as the Restrictive Trade Practice (Motor Spirit and Motor Vehicle Lubricating Oil) Order, 1961.

2. In this Order—

"commercial consumer " means a person who purchases motor spirit or motor vehicle lubricating oil directly from a wholesaler in bulk quantities of not less than the amounts specified in the wholesaler's terms and conditions of sale and who does not sell or offer fox sale by retail to the general public the motor spirit or motor vehicle lubricating oil;

"company station retailer " means a person who, as agent or employee of a wholesaler, operates a motor spirit station owned or leased by the wholesaler or who as lessee, tenant or licensee of a motor spirit station owned or leased by a wholesaler, operates the motor spirit station;

"the Commission " means the Fair Trade Commission;

"dispensing equipment " means any pump, storage tank, pipe, fitting or other equipment used for dispensing motor spirit or motor vehicle lubricating oil at a motor spirit station;

"mixed brand retailer " means a retailer who sells or offers for sale at a motor spirit station the brands of motor spirit of more than one wholesaler;

"motor spirit " means any spirit which consists wholly or partly of hydrocarbon light oils within the meaning of section 1 of the Finance (Customs Duties) (No. 4) Act, 1931 (No. 43 of 1931), and which is suitable for use as fuel in an internal combustion engine;

"motor spirit station " means any premises where, whether in conjunction with another business or not, motor spirit is sold or offered for sale by retail to the public from a pump or pumps;

"motor vehicle lubricating oil " means any oil which is used for the lubrication of a motor vehicle;

"retailer " means, except where the context otherwise requires, a person who sells or offers for sale by retail to the public at a motor spirit station motor spirit from a pump or pumps or motor spirit from a pump or pumps and motor vehicle lubricating oil;

"solus agreement " means an agreement or arrangement between a wholesaler and a person who is or proposes to become a retailer (other than a company station retailer) under which the person undertakes to purchase motor spirit for a specified period from the wholesaler and not to purchase motor spirit from any other wholesaler;

"solus retailer " means a retailer (other than a company station retailer) who is a party to a solus agreement that is in force;

"wholesaler " means any person who, either as pr incipal, agent or factor, sells or offers for sale motor spirit or motor vehicle lubricating oil or both such spirit and such oil to a retailer for resale or to a commercial consumer.

3.—(1) Subject to paragraph (2) of this Article, a wholesaler shall not differentiate, either directly or indirectly, between one retailer and another in relation to the price at which he sells or offers for sale motor spirit of like grade or quality.

(2) A wholesaler may sell or offer for sale motor spirit to Bolus retailers at a price that is lower than the price at which he sells it or offers it for sale to other retailers: Provided that the difference between the prices is reasonable and justifiable having regard to the functions that a wholesaler may require solus retailers to perform in realtion to the purchase and sale o£ motor spirit and that motor spirit is sold or offered for sale at the reduced price aforesaid by the wholesaler to all retailers who become solus retailers pursuant to agreements entered into with the wholesaler after the commencement of this Order.

(3) Nothing in this Article shall require a wholesaler to give any special allowance or rebate in respect of motor spirit before payment therefor to retailers who become solus retailers pursuant to agreements entered into with the wholesaler after the commencement of this Order.

4. A wholesaler from whom—

(a) a mixed brand retailer purchases motor spirit in respect of a motor spirit station, or

(b) a person—

(i) who, having been a solus retailer in respect of a motor spirit station in relation to which the solus agreement (being an agreement entered into before the commencement of this Order), if any, has been legally terminated, wishes to become a mixed brand retailer in respect of that station, and

(ii) who, at any time during the period from the 1st day of January, 1950, to the 31st day of December, 1956, was a mixed brand retailer in respect of that motor spirit station,

purchased motor spirit in respect of that station, during that period at a time when he was a mixed brand retailer, shall not—

(I) refuse to supply motor spirit to those retailers at those stations, or

(II) in consideration of the supply by the wholesaler of motor spirit or any dispensing equipment to those retailers, require them—

(A) to purchase motor spirit for those stations exclusively or mainly from the wholesaler,

(B) to refrain from purchasing motor spirit for those stations from any other wholesaler,

(C) to refrain from purchasing during any period more than a specified quantity of motor spirit for those stations from any other wholesaler.

(D) to restrict the display or advertising at those stations of motor spirit supplied by another wholesaler, or

(E) to refrain from displaying or advertising at those stations motor spirit supplied by another wholesaler.

5.—(1) A wholesaler may, subject to the provisions of this Order, impose, in relation to the supply of motor spirit to a mixed brand retailer, such terms and conditions as he may consider necessary in the interests of efficiency and economy in the distribution of motor spirit, including terms and conditions relating to the ordering of motor spirit, the quantities ordered and the regularity of orders, the payment therefor and the storage and dispensing thereof.

(2) Subject to Article 3 of this Order and paragraph (3) of this Article, the terms and conditions subject to which a wholesaler supplies motor spirit to mixed brand retailers shall not be less advantageous to the retailers than the terms and conditions subject to which the wholesaler supplies motor spirit to solus retailers.

(3) Notwithstanding paragraph (2) of this Article, where a wholesaler provides—

(a) training, free of charge, for the staff of a motor spirit station in respect of which a solus agreement between a solus retailer and the wholesaler is in force or is proposed to be brought into force,

(b) a loan to be used in rebuilding, repairing or extending the motor spirit station, or

(c) any similar service or facility for the solus retailer or a person who proposes to enter into a solus agreement with the wholesaler,

omission to provide any such service or facility for mixed brand retailers to whom he supplies motor spirit shall not be a contravention of paragraph (2) of this Article.

6.—(1) A solus agreement for a term certain of more than five years shall not be entered into after the commencement of this Order.

(2) A mortgage, hire-purchase agreement, or agreement providing for the grant or repayment of a loan, entered into after the commencement of this Order between a wholesaler and a solus retailer or a person who proposes to become a solus retailer shall not contain any provision whereby the retailer or person (as the case may be) undertakes to purchase motor spirit from the wholesaler and not to purchase motor spirit from any other wholesaler for a period of more than five years or the remainder of the term of an existing solus agreement between the wholesaler and the retailer, whichever is the shorter.

7. A wholesaler shall not impose, in relation to the supply of motor spirit to a retailer (other than a company station retailer), a term or condition requiring the retailer to purchase motor vehicle lubricating oil from the wholesaler.

8.—(1) A wholesaler—

(a) shall furnish to the Commission, upon request by the Commission, detailed particulars in writing of his proposals and programmes (if any) for the acquisition (whether by purchase, lease or otherwise) or construction, either solely or with another person or other persons, of motor spirit stations, and

(b) shall, before acquiring (whether by purchase, lease or otherwise) or constructing a motor spirit station, either solely or with another person or other persons, give notice in writing to the Commission of his intention to acquire or construct the motor spirit station.

(2) A wholesaler shall furnish to the Commission all such information, including information in relation to motor spirit stations of which the wholesaler is the owner, lessee or licensee, either alone or with another person or other persons, as the Commission may reasonably require from time to time for the purpose of any review by the Commission of the operation or proposed operation of motor spirit stations by company station retailers.

9. A wholesaler shall not—

(a) impose, in relation to the supply of motor vehicle lubricating oil to a retailer (other than a company station retailer) or a person who proposes to become such a retailer, any term or condition whereby the retailer or person, as the case may be, is required,

or

(b) offer or give to any retailer or person who proposes to become a retailer any rebate, discount, refund or other concession on or in relation to the price of motor vehicle lubricating oil or any service, facility or consideration of any kind in consideration of an undertaking, either express or implied, by the retailer,

in relation to a particular motor spirit station—

(i) to purchase the motor vehicle lubricating oil required by him for sale at that station exclusively or mainly from the wholesaler,

(ii) to purchase a specified proportion, however, expressed, of the motor vehicle lubricating oil required by him for sale at that station from the wholesaler.

(iii) to purchase from the wholesaler, in addition to any motor spirit purchased by him from the wholesaler for sale at that station, a quantity of motor vehicle lubricating oil bearing a specified ratio to the quantity of motor spirit purchased by him from the wholesaler,

(iv) to refrain from purchasing motor vehicle lubricating oil for sale at that station, or restrict the quantities thereof purchased by him for sale at that station, from other wholesalers,

(v) to stock, offer for sale, or sell, at that station or any particular part thereof, the motor vehicle lubricating oil of the wholesaler, exclusively,

(vi) to display or advertise at that station or any particular part thereof motor vehicle lubricating oil of the wholesaler exclusively,

(vii) to refrain from displaying or advertising at that station or any particular part thereof motor vehicle lubricating oil other than motor vehicle lubricating oil of the wholesaler,

(viii) to refrain from stocking, selling or offering for sale at that station or any particular part thereof motor vehicle lubricating oil of any other wholesaler, or

(ix) to purchase motor spirit from the wholesaler for sale at that station.

10. A wholesaler shall not differentiate between retailers, either directly or indirectly, in relation to the terms and conditions subject to which he supplies motor vehicle lubricating oil of like quality, grade or quantity, whether on a single occasion or on a number of occasions during a specified period, to them.

11. Nothing in this Order shall require a wholesaler to supply motor vehicle lubricating oil to a retailer, or person proposing to become a retailer, who fails or refuses to comply with or has not complied with the terms and conditions subject to which the wholesaler supplies motor vehicle lubricating oil, being terms and conditions not inconsistent with the provisions of this Order.

12.—(1) A wholesaler shall not enter into any agreement, arrangement or understanding, or do any act, that has the effect of providing for or facilitating, or is designed or intended to provide for or facilitate—

(a) the fixing or regulation in common of prices at which motor spirit or motor vehicle lubricating oil is sold or offered for sale by wholesalers to retailers or commercial consumers,

(b) the fixing or regulation in common of any discount, rebate or other similar concession granted or allowed by wholesalers to retailers or commercial consumers in relation to the supply of motor spirit or motor vehicle lubricating oil or the preparation, maintenance or application of a common scale of such discounts, rebates or other similar concessions,

(c) notifying another wholesaler of any alteration or proposed alteration of the price of motor spirit or motor vehicle lubricating oil supplied by the first mentioned wholesaler to retailers or commercial consumers or of any discount, rebate or other similar concession granted or allowed by the first mentioned wholesaler in relation to such supply.

(2) Paragraph (1) of this Article shall not apply in relation to an agreement, arrangement or understanding between a wholesaler and an agent or factor of the wholesaler in respect of the prices at which motor spirit of the wholesaler's brand or motor vehicle lubricating oil of the wholesaler's brand is sold or offered for sale by the agent or factor to retailers or commercial consumers.

13. A wholesaler shall not enter into any agreement, arrangement or understanding with another wholesaler, and a retailer shall not enter into any agreement, arrangement or understanding with another retailer, that has the purpose or effect of ensuring that motor spirit or motor vehicle lubricating oil will be sold or offered for sale by a retailer at a fixed or minimum price however determined.

14. A wholesaler shall not enter into any agreement, arrangement or understanding with another wholesaler, or do any act in concert with another wholesaler, that has the effect of providing for or facilitating, or is designed or intended to provide for or facilitate—

(a) the prevention of persons from becoming wholesalers or the restriction of the number of persons becoming wholesalers, or

(b) the unfair or unjust elimination of a wholesaler from business as a wholesaler.

15. Any provision of an agreement, whether entered into before or after the commencement of this Order, that is inconsistent with the provisions of Article 9, 12, 13 or 14 of this Order shall, to the extent of the inconsistency be null and void.

16. A wholesaler shall not, by reason only of the fact that a retailer or person proposing to become a retailer is or is not a member of any trade association or is or is not approved of by any trade association, refuse to supply, refrain from supplying, withhold from or supply on terms less advantageous than those available to other retailers, that retailer or person with motor spirit or motor vehicle lubricating oil.

17. Nothing contained in this Order shall be construed as preventing differentiation by a wholesaler based on bona fide considerations of creditworthiness between different persons (being either retailers or commercial consumers) in relation to the time allowed by the wholesaler for payment for motor spirit or motor vehicle lubricating oil supplied to them by the wholesaler.

18. A wholesaler shall, whenever requested to do so by the Commission, furnish to the Commission a statement in writing containing the terms and conditions subject to which he supplies motor spirit, motor vehicle lubricating oil and dispensing equipment to retailers and commercial consumers and shall notify the Commission, as soon as may be, of any change in the terms or conditions.

GIVEN under my Official Seal, this 18th day of December, 1961.

JOHN LYNCH,

Minister for Industry and Commerce.

EXPLANATORY NOTE.

The effect of this order is to prohibit certain restrictive trade practices in relation to the supply and distribution of motor spirit and motor vehicle lubricating oil. The Order requires to be confirmed by an Act of the Oireachtas before it will have the force of law.