Part I Prohibition of Collective Resale Price Maintenance
1 Collective agreement by suppliers.
1
It is unlawful for any two or more persons carrying on business in the United Kingdom as suppliers of any goods to make or carry out any agreement or arrangement by which they undertake—
a
to withhold supplies of goods for delivery in the United Kingdom from dealers (whether party to the agreement or arrangement or not) who resell or have resold goods in breach of any condition as to the price at which those goods may be resold;
b
to refuse to supply goods for delivery in the United Kingdom to such dealers except on terms and conditions which are less favourable than those applicable in the case of other dealers carrying on business in similar circumstances; or
c
to supply goods only to persons who undertake or have undertaken—
i
to withhold supplies of goods as described in paragraph (a) above; or
ii
to refuse to supply goods as described in paragraph (b) above.
2
It is unlawful for any two or more such persons to make or carry out any agreement or arrangement authorising—
a
the recovery of penalties (however described) by or on behalf of the parties to the agreement or arrangement from dealers who resell or have resold goods in breach of any such condition as is described in paragraph (a) of subsection (1) above; or
b
the conduct of any domestic proceedings in connection therewith.
2 Collective agreement by dealers.
1
It is unlawful for any two or more persons carrying on business in the United Kingdom as dealers in any goods to make or carry out any agreement or arrangement by which they undertake—
a
to withhold orders for supplies of goods for delivery in the United Kingdom from suppliers (whether party to the agreement or arrangement or not)—
i
who supply or have supplied goods otherwise than subject to such a condition as is described in paragraph (a) of section 1(1) above; or
ii
who refrain or have refrained from taking steps to ensure compliance with such conditions in respect of goods supplied by them;
or,
b
to discriminate in their handling of goods against goods supplied by such suppliers.
2
It is unlawful for any two or more such persons to make or carry out any agreement or arrangement authorising—
a
the recovery of penalties (however described) by or on behalf of the parties to the agreement or arrangement from such suppliers; or
b
the conduct of any domestic proceedings in connection therewith.
3 Recommendations.
It is unlawful for any person carrying on business in the United Kingdom as a supplier of or dealer in any goods to make to any other person carrying on such a business any recommendation to act in such a manner that, if there were an agreement between those persons so to act, the agreement would be unlawful by virtue of section 1 or section 2 above.
4 Associations.
Sections 1 to 3 above apply in relation to an association the members of which consist of or include persons carrying on business in the United Kingdom as suppliers of or dealers in any goods, or representatives of such persons, as they apply in relation to a person so carrying on business.
5 Exclusive dealing.
A contract for the sale of goods to which not more than two persons are party is not unlawful under this Part of this Act by reason only of undertakings by the purchaser in relation to the goods sold and by the vendor in relation to other goods of the same description.
6 Discounts and part exchanges.
For the purposes of this Part of this Act a condition—
a
as to the amount of discount which may be allowed on the resale of any goods, or
b
as to the price which may be paid on the resale of any goods for other goods taken by way of exchange,
shall be treated as a condition as to the price at which goods may be resold.
7 Hire-purchase agreements.
The provisions of Schedule 1 to this Act, which relate to hire-purchase agreements, have effect for the purposes of this Part of this Act.
8 Interpretation of Part I.
1
In this Part of this Act—
“goods” includes ships and aircraft, minerals, substances and animals (including fish);
“price” includes a charge of any description;
“supply” includes supply by way of lease or hire, and “acquire” shall be construed accordingly.
2
This Part applies to the construction or carrying out of buildings, structures and other works by contractors, as it applies to the supply of goods, and for the purposes of this Part any buildings, structures or other works so constructed or carried out shall be deemed to be delivered at the place where they are constructed or carried out.
3
For the purposes of this Part a person shall not be deemed to carry on a business within the United Kingdom by reason only of the fact that he is represented for the purposes of that business by an agent within the United Kingdom.
4
For the purposes of any provision of this Part referring to two or more or not more than two persons, two or more persons being interconnected bodies corporate or individuals carrying on business in partnership with each other shall be treated as a single person.
Part II Individual Minimum Resale Price Maintenance
Prohibition of individual resale price maintenance
9 Minimum resale prices maintained by contract or agreement.
1
Any term or condition—
a
of a contract for the sale of goods by a supplier to a dealer, or
b
of any agreement between a supplier and a dealer relating to such a sale,
is void in so far as it purports to establish or provide for the establishment of minimum prices to be charged on the resale of the goods in the United Kingdom.
2
It is unlawful for a supplier of goods (or for an association or person acting on behalf of such suppliers)—
a
to include in a contract for sale or agreement relating to the sale of goods a term or condition which is void by virtue of this section;
b
to require, as a condition of supplying goods to a dealer, the inclusion in a contract or agreement of any such term or condition, or the giving of any undertaking to the like effect;
c
to notify to dealers, or otherwise publish on or in relation to any goods, a price stated or calculated to be understood as the minimum price which may be charged on the resale of the goods in the United Kingdom.
Paragraph (a) does not affect the enforceability of a contract of sale or other agreement, except in respect of the term or condition which is void by virtue of this section.
Paragraph (c) is not to be construed as precluding a supplier (or an association or person acting on behalf of a supplier) from notifying to dealers or otherwise publishing prices recommended as appropriate for the resale of goods supplied or to be supplied by the supplier.
10 Patented articles under s. 9.
1
Section 9 above applies to patented articles (including articles made by a patented process) as it applies to other goods.
2
Notice of any term or condition which is void by virtue of section 9, or which would be so void if included in a contract of sale or agreement relating to the sale of any such article, is of no effect for the purpose of limiting the right of a dealer to dispose of that article without infringement of the patent.
3
Nothing in section 9 and in this section affects the validity, as between the parties and their successors, of any term or condition—
a
of a licence granted by the proprietor of a patent or by a licensee under any such licence; or
b
of any assignment of a patent,
so far as it regulates the price at which articles produced or processed by the licensee or assignee may be sold by him.
4
References in this section to patented articles include references to—
a
articles protected F2by design right or by the registration of a design, and
b
articles protected by plant breeders’ rights F3. . .
and references in this section to a patent shall be construed accordingly.
11 Minimum resale prices maintained by other means.
1
It is unlawful for a supplier to withhold supplies of any goods from a dealer seeking to obtain them for resale in the United Kingdom on the ground that the dealer—
a
has sold in the United Kingdom at a price below the resale price goods obtained, either directly or indirectly, from that supplier, or has supplied such goods, either directly or indirectly, to a third party who had done so; or
b
is likely, if the goods are supplied to him, to sell them in the United Kingdom at a price below that price, or supply them, either directly or indirectly, to a third party who would be likely to do so.
2
In this section “the resale price”, in relation to a sale of any description, means—
a
any price notified to the dealer or otherwise published by or on behalf of a supplier of the goods in question (whether lawfully or not) as the price or minimum price which is to be charged on or is recommended as appropriate for a sale of that description; or
b
any price prescribed or purporting to be prescribed for that purpose by a contract or agreement between the dealer and any such supplier.
3
Where under this section it would be unlawful for a supplier to withhold supplies of goods it is also unlawful for him to cause or procure any other supplier to do so.
12 Meaning of “withhold supplies” in relation to Part II.
1
For the purposes of this Part of this Act a supplier of goods shall be treated as withholding supplies of goods from a dealer—
a
if he refuses or fails to supply those goods to the order of the dealer;
b
if he refuses to supply those goods to the dealer except at prices, or on terms or conditions as to credit, discount or other matters, which are significantly less favourable than those at or on which he normally supplies those goods to other dealers carrying on business in similar circumstances; or
c
if, although he contracts to supply the goods to the dealer, he treats him in a manner significantly less favourable than that in which he normally treats other such dealers in respect of times or methods of delivery or other matters arising in the execution of the contract.
2
For the purposes of this Part a supplier shall not be treated as withholding supplies of goods on any such ground as is mentioned in section 11(1) above if, in addition to that ground, he has other grounds which, standing alone, would have led him to withhold those supplies.
3
If in proceedings brought against a supplier of goods in respect of a contravention of section 11 it is proved that supplies of goods were withheld by the supplier from a dealer, and it is further proved—
a
that down to the time when supplies were so withheld the supplier was doing business with the dealer or was supplying goods of the same description to other dealers carrying on business in similar circumstances, and
b
that the dealer, to the knowledge of the supplier, had within the previous six months acted as described in section 11(1)(a), or had indicated his intention to act as described in paragraph (b) of that subsection in relation to the goods in question,
it shall be presumed, unless the contrary is proved, that the supplies were withheld on the ground that the dealer had so acted or was likely so to act.
This subsection does not apply where the proof that supplies were withheld consists only of evidence of requirements imposed by the supplier in respect of the time at which or the form in which payment was to be made for goods supplied or to be supplied.
13 Exception for measures against loss leaders.
1
It is not unlawful by virtue of section 11 above for a supplier to withhold supplies of any goods from a dealer, or to cause or procure another supplier to do so, if he has reasonable cause to believe that within the previous twelve months the dealer or any other dealer to whom the dealer supplies goods has been using as loss leaders any goods of the same or a similar description, whether obtained from that supplier or not.
2
The reference in this section to the use of goods as loss leaders is a reference to a resale of the goods effected by the dealer, not for the purpose of making a profit on the sale of those goods, but for the purpose of attracting to the establishment at which the goods are sold customers likely to purchase other goods or otherwise for the purpose of advertising the business of the dealer.
3
A sale of goods shall not be treated for the purposes of this section as the use of those goods as loss leaders—
a
where the goods are sold by the dealer at a genuine seasonal or clearance sale, not having been acquired by the dealer for the purpose of being resold as mentioned in this section; or
b
where the goods are resold as mentioned in this section with the consent of the manufacturer of the goods or, in the case of goods made to the design of a supplier or to the order, and bearing the trade mark of a supplier, of that supplier.
Applications to the Restrictive Practices Court in relation to exemptions
14 Exemption of goods by the Court.
1
Upon an application under section 16 or section 17 below the Restrictive Practices Court (“the Court”) may make an order in accordance with this section directing that goods of any class shall be exempted goods for the purposes of this Part of this Act.
2
The order referred to in subsection (1) above may be made if it appears to the Court that in default of a system of maintained minimum resale prices applicable to those goods—
a
the quality of the goods available for sale, or the varieties of the goods so available, would be substantially reduced to the detriment of the public as consumers or users of those goods; or
b
the number of establishments in which the goods are sold by retail would be substantially reduced to the detriment of the public as such consumers or users; or
c
the prices at which the goods are sold by retail would in general and in the long run be increased to the detriment of the public as such consumers or users; or
d
the goods would be sold by retail under conditions likely to cause danger to health in consequence of their misuse by the public as such consumers or users; or
e
any necessary services actually provided in connection with or after the sale of the goods by retail would cease to be so provided or would be substantially reduced to the detriment of the public as such consumers or users;
and in any such case that the resulting detriment to the public as consumers or users of the goods in question would outweigh any detriment to them as such consumers or users (whether by the restriction of competition or otherwise) resulting from the maintenance of minimum resale prices in respect of the goods.
In this section—
“necessary services”, in relation to goods, means services which, having regard to the character of the goods, are required to guard against the risk of injury, whether to persons or to premises, in connection with the consumption, installation or use of the goods, or are otherwise reasonably necessary for the benefit of consumers or users; and
“consumers” and “users” include persons consuming or using for the purpose or in the course of trade or business or for public purposes.
15 Who may apply to the Court.
An application to the Court under section 16 or section 17 below may be made by—
a
the Director General of Fair Trading (“the Director”);
b
any supplier of goods of the class in question; or
c
any trade association whose members consist of or include such suppliers.
16 New applications.
1
Upon an application under this section the Court may make an order under section 14 above directing that goods of any class specified in the order other than goods in respect of which—
a
a reference has been made under section 5 of the M1Resale Prices Act 1964, or
b
a previous application has been made under this section,
shall be exempted goods for the purposes of this Part of this Act.
2
No application shall be made under this section except with the Court’s leave, and that leave shall not be granted except upon prima facie evidence of facts upon which an order could be made in accordance with section 14 in respect of the goods in question, or could be so made if any detriment to the public resulting from the maintenance of minimum resale prices were disregarded.
17 Court’s power to review its decisions.
1
Upon an application under this section the Court may—
a
discharge any order previously made by the Court directing that goods of any class shall be exempted goods;
b
make an order under section 14 above directing that goods of any class shall be exempted goods for the purposes of this Act where the Court has in respect of that class of goods previously refused to make such an order or has previously discharged such an order.
2
No application shall be made under this section except with the Court’s leave, and that leave shall not be granted except upon prima facie evidence of a material change in the relevant circumstances since the Court’s last decision in respect of the goods in question.
18 Facts found under the Restrictive Trade Practices Act 1976 c. 34.
Upon an application under section 16 or section 17 above in respect of goods of any class which have been the subject of proceedings in the Court under Part I of the Restrictive Trade Practices Act 1976 (or under Part I of the M2Restrictive Trade Practices Act 1956) the Court may treat as conclusive any finding of fact made in those proceedings, and shall do so unless prima facie evidence is given of a material change in the relevant circumstances since those proceedings.
19 Effect of exemption order.
Where an exemption order is made under section 14 above—
a
section 9 above does not apply in relation to any contract of sale or other agreement relating to exempted goods of the class specified in the order, or anything done in relation to such goods; and
b
notwithstanding section 11 above, a supplier may withhold supplies of any such goods from a dealer seeking to obtain them for resale in the United Kingdom on the ground that the dealer—
i
has sold in the United Kingdom at a price below the resale price (which means the same in this paragraph as in section 11) exempted goods obtained, either directly or indirectly, from that supplier or has supplied such goods, either directly or indirectly to a third party who had done so, or
ii
is likely, if the exempted goods are supplied to him, to sell them in the United Kingdom at a price below that price, or supply them, either directly or indirectly, to a third party who would be likely to do so.
20 Discharge of exemption order.
Where, by virtue of a decision of the Court under section 17(1)(a) above, section 9 above takes effect, that section, so far as it affects the validity of any term or condition of a contract or agreement for or relating to the sale of any goods, or the effect of notice of any term or condition so relating, applies to contracts and agreements made and notices given before as well as after that section takes effect, and—
a
for the purposes of the jurisdiction of any court to grant an injunction in proceedings pending at the time when section 9 takes such effect, that section shall be treated as if it had taken effect before the cause of action arose; and
b
any injunction granted or undertaking given before section 9 takes such effect in or for the purpose of any proceedings shall be of no effect in so far as it would operate to require compliance with any term or condition which is void, or notice of which is invalidated, by virtue of that section.
21 Supplementary provisions as to applications to the Court.
1
Rules made by virtue of section 9(1) of the M3Restrictive Practices Court Act 1976 in relation to an application under this Part of this Act shall include provisions—
a
for enabling the Court, on the application of the Director or of any party interested, to give directions with respect to the goods to be included in or excluded from any application under this Part of this Act;
b
for securing that retailers, and trade associations representing employees in the distributive trades, who—
i
have an interest in any such application, and
ii
have given notice to the Director within such time and in such manner as may be prescribed by the rules,
are entitled, whether in consequence of a representation order or otherwise, to be represented before the Court in the proceedings.
2
Without prejudice to the generality of section 9(1) of the M4Restrictive Practices Court Act 1976, rules made under that subsection in relation to an application under this Part of this Act may provide—
a
for enabling a single application to be made to the Court in respect of a number of related classes of goods, or separate applications made in respect of related classes, to be heard together;
b
for enabling the Court to determine in a summary way any issue arising in relation to a class of goods where it appears to the Court that the class of goods and the circumstances of the case are substantially similar to the class of goods and circumstances considered in any previous proceedings before the Court;
c
for enabling the Court to make an order for the payment by any party of costs in respects of proceedings in which he is guilty of unreasonable delay, or in respect of any improper, vexatious, prolix or unnecessary proceedings or any other unreasonable conduct on his part.
3
The Court does not have power to order the payment of costs by any party to proceedings on an application under this Part of this Act, except—
a
so far as may be the case under rules made as provided by subsection (2) above;
b
as is provided by subsection (4) below.
4
The Court may order the payment by the Director of all or any of the following costs incurred by any other party—
a
costs incurred on an application under section 16 above in respect of any issue determined in favour of that party, being an issue which in the Court’s opinion substantially corresponds with an issue so determined in proceedings in respect of an agreement of which particulars are entered or filed in the register under the M5Restrictive Trade Practices Act 1976 (or under the M6Restrictive Trade Practices Act 1956);
b
costs incurred on an application under section 17 above in respect of an issue determined in favour of that party.
Miscellaneous
22 Listing of the Court’s orders as to goods.
The Director shall publish lists of the classes of goods in respect of which the Court has made, refused to make or discharged orders under this Part of this Act.
23 Statutory schemes.
Nothing in this Part of this Act applies to an agreement which is expressly authorised by an enactment, or by a scheme, order or other instrument made under an enactment, or to anything done pursuant to any such agreement, scheme, order or instrument.
24 Interpretation of Part II.
1
In this Part of this Act—
“dealer” means a person carrying on a business of selling goods, whether by wholesale or by retail;
“supplier” means a person carrying on a business of selling goods other than a business in which goods are sold only by retail;
“trade association” means a body of persons (whether incorporated or not) which is formed for the purpose of furthering the trade interests of its members or the persons represented by its members.
2
Where—
a
the dealer referred to in section 11(1)(a) above, or in section 13(1) above, or
b
the supplier referred to in section 11(1)(a),
is one of a group of interconnected bodies corporate the reference includes a reference to any other dealer or, as the case may be, any other supplier who is also a member of that group.
Part III General and Supplemental
25 Contravention of and compliance with the Act.
1
No criminal proceedings lie against any person on the ground that he has committed, or aided, abetted, counselled or procured the commission of, or conspired or attempted to commit, or incited others to commit, any contravention of sections 1 and 2 and sections 9 and 11 above.
2
Without prejudice to the right of any person to bring civil proceedings by virtue of subsection (3) below, compliance with those sections shall be enforceable by civil proceedings on behalf of the Crown for an injunction or other appropriate relief.
3
The obligation to comply with those sections is a duty owed to any person who may be affected by a contravention of them, and any breach of that duty is actionable accordingly (subject to the defences and other incidents applying to actions for breach of statutory duty).
26 Individual resale price maintenance enforceable in certain cases.
1
The provisions of this section shall—
a
apply where goods are sold by a supplier subject to a condition which is not unlawful under this Act as to the price at which those goods may be resold; and
b
be interpreted as if they were provisions of Part I of this Act.
2
Where goods are sold by a supplier subject to such a condition, either generally or by or to a specified class or person, that condition may be enforced by the supplier against any person—
a
who is not party to the sale, and
b
who subsequently acquires the goods with notice of the condition,
as if that person had been party to the sale.
3
A condition shall not be enforceable by virtue of this section—
a
in respect of the resale of any goods—
i
by a person who acquires those goods otherwise than for the purpose of resale in the course of business; or
ii
by any person who acquires them, whether immediately or not, from such a person;
b
in respect of the resale of any goods—
i
pursuant to an order of any court; or
ii
by way of execution or distress; or
iii
by any person who acquires them, whether immediately or not, after such resale.
4
Nothing in this section shall be construed as enabling any person to enforce a condition imposed in pursuance of any restriction which is declared by an order of the Court for the time being in force under the M7Restrictive Trade Practices Act 1976 (or under the M8Restrictive Trade Practices Act 1956) to be contrary to the public interest.
5
The court may, upon proof that goods sold by the plaintiff have been resold by the defendant in breach of a condition which is enforceable against him by virtue of this section, grant an injunction restraining the defendant from reselling in breach of any such condition any goods sold or to be sold by the plaintiff, whether of the same description as the goods proved to have been resold as described above or of any other description.
This subsection is without prejudice to any other relief which may be granted in proceedings against any person in respect of a breach or apprehended breach of such a condition.
27 Interpretation of the Act.
In this Act—
“the Court” means the Restrictive Practices Court;
“the Director” means the Director General of Fair Trading;
“interconnected bodies corporate” means bodies corporate which are members of the same group, and for the purposes of this definition “group” means a body corporate and all other bodies corporate which are its subsidiaries—
- a
within the meaning of section F4section 736 of the Companies Act 1985; or
- b
for companies in Northern Ireland, within the meaning of F5Article 4 of the Companies (Northern Ireland) Order 1986; or
- c
(in the case of an industrial and provident society) within the meaning of section 15 of the M9Friendly and Industrial and Provident Societies Act 1968 or section 47 of the M10Industrial and Provident Societies Act (Northern Ireland) 1969, as the case may be.
- a
28 Application to Scotland.
In the application of this Act to Scotland—
“assignment” means “assignation”;
“defendant” means “defender”;
“injunction” means “interdict”;
“plaintiff” means “pursuer”.
29 Transitional provisions, savings and repeals.
1
The provisions of Schedule 2 to this Act have effect for the purposes of the Act.
C12
The enactments specified in Part I of Schedule 3 to this Act (consequential repeals) and Part II of that Schedule (repeals of provisions of the Resale Prices Act 1964 and the Restrictive Trade Practices Act 1968 which have ceased to have any effect) are hereby repealed to the extent specified in the third column of that Schedule.
3
30 Short title, extent and commence-ment.
1
This Act may be cited as the Resale Prices Act 1976.
2
This Act extends to Northern Ireland.
C23
This Act shall come into operation on such day as the Secretary of State may appoint by order made by statutory instrument.