The Supply of Beer (Loan Ties, Licensed Premises and Wholesale Prices) Order 1989

1.—(1) This Order may be cited as the Supply of Beer (Loan Ties, Licensed Premises and Wholesale Prices) Order 1989 and shall come into force–

(a) for the purposes of articles 2(2) (a) and 3(2) (a) below, on 1st January 1990, and

(b) for all other purposes, on 1st May 1990.

(2) In this Order–

“beer” includes any beverage of an alcoholic strength (within the meaning of the Alcoholic Liquor Duties Act 1979(1)) exceeding 1·2 per cent which is made with beer;“brewer” means a person who carries on business in the manufacture of beer which is supplied by retail in the United Kingdom;“brewery group” means a group which is

(a) a group of interconnected bodies corporate, or

(b) a group consisting of a body corporate, or a group of interconnected bodies corporate, all other bodies corporate in which it, or any of them, has a substantial minority holding, and all subsidiaries of those other bodies corporate,

and at least one member of which is a brewer;

“licensed premises” means–

(a)

in England and Wales, premises for which a justices' on-licence (within the meaning of the Licensing Act 1964(2), other than a Part IV licence (within the meaning of that Act), is in force, or in respect of which a club is registered within the meaning of that Act;

(b)

in Scotland, premises in respect of which a public house licence, a hotel licence or a refreshment licence (within the meaning of the Licensing (Scotland) Act 1976(3) is in force or which are occupied by a registered club within the meaning of that Act;

(c)

in Northern Ireland, premises in which the sale of intoxicating liquor is authorised by a licence granted under the Licensing Act (Northern Ireland) 1971(4), being premises of a kind mentioned in paragraph (a) or (f) of section 3(1) of that Act, or in respect of which a club is registered within the meaning of the Registration of Clubs (Northern Ireland) Order 1987(5);

“relevant purchase”, in the context of an agreement to which a brewer or a member of a brewery group is a party, means purchase by any other person who is not a member of the same group, for retail sale on licensed premises, of beer or other drink manufactured or supplied by any person not a party to the agreement;“subsidiary” has the same meaning as in section 736 of the Companies Act 1985(6);“substantial minority holding” means a holding by a body corporate of fifteen per cent or more, or an interest in shares conferring fifteen per cent or more, of the voting rights in another body corporate, other than its subsidiary; and for that purpose–

(a)

an “interest in shares” includes an entitlement, by a person who is not the registered holder, to exercise any right conferred by the holding of the shares in question or an entitlement to control the exercise of any such right, and

(b)

“voting rights” means rights conferred on shareholders in respect of their shares, either at all times or for the time being, to vote at general meetings of the body corporate in question on all, or substantially all, matters.

(3) For the purpose of determining whether a body corporate has a substantial minority holding in another body corporate–

(a) it is immaterial whether a holding is direct or through a nominee or trustee,

(b) the holdings of the subsidiaries of a body corporate shall be treated as its own,

(c) where one body corporate has a holding in a second body corporate (not being its subsidiary) and the second body corporate has a holding in a third body corporate (not being its subsidiary), the first body corporate shall be treated as having a holding in the third equivalent to the product of the two actual holdings expressed as percentages, and

(d) where a body corporate has, in consequence of the application of subparagraphs (a), (b) and (c) above, more than one holding in another body corporate, the holdings shall be aggregated and treated as a single holding.

(4) In the case of a body corporate which is both a brewer and a member of a brewery group, the provisions of this Order shall apply in relation to that body corporate both as a brewer and as a member of a brewery group.

(5) For the purpose of determining whether an agreement is an agreement to which article 2 or 3 below applies, a person shall be regarded as a brewer or a member of a brewery group if he is for the time being a brewer or a member of a brewery group, and it is immaterial that he may not have been such a person when the agreement was made.

(6) For the purposes of this Order–

(a) a person shall not be treated as carrying out an agreement by reason only that he refrains from doing something the doing of which is the subject of a prohibition or restriction imposed by the agreement; and

(b) an agreement precludes or restricts a relevant purchase whether it does so wholly or only in part, whether that is the object or merely the effect of the agreement, and whether the provisions in question are expressed as negative or positive obligations.

(7) This Order shall extend so as to prohibit the carrying out of agreements already in existence on the date on which this Order is made as it prohibits the carrying out of agreements made subsequently.

(8) In the case of a person falling within paragraph (a), (b) or (c) of section 90(3) of the Fair Trading Act 1973, this Order (except for article 5 below) shall extend to his acts and omissions outside the United Kingdom.

(1)

1979 c. 4.

(2)

1964 c. 26.

(3)

1976 c. 66.

(4)

1971 c. 13 (N.I.).

(5)

S.I. 1987/1278 (N.I. 14).

(6)

1985 c. 6.