S.I. No. 70/1981:

RESTRICTIVE PRACTICES (MOTOR SPIRITS AND MOTOR VEHICLE LUBRICATING OIL) ORDER, 1981.

RESTRICTIVE PRACTICES (MOTOR SPIRITS AND MOTOR VEHICLE LUBRICATING OIL) ORDER, 1981.

I, DESMOND O'MALLEY, Minister for Industry, Commerce and Tourism, having considered a report of the Restrictive Practices Commission of an enquiry under section 5 of the Restrictive Practices Act, 1972 (No. 11 of 1972), into the operation of the Restrictive Practices (Motor Spirit) Orders, 1961 to 1975, into any other matters germane to the operation of those orders and also into conditions which obtain in regard to the agreements under which stations which are company-owned but not company-run are operated, in exercise of the powers conferred on me by section 8 of the said Act adapted by the Industry, Commerce and Tourism (Alteration of Name of Department and Title of Minister) Order, 1980 ( S.I. No. 10 of 1980 ), hereby order as follows:

1. This Order may be cited as the Restrictive Practices (Motor Spirit and Motor Vehicle Lubricating Oil) Order, 1981.

2. (1) In this Order, except where the context otherwise requires-- "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 for sale by retail to the general public the motor spirit or motor vehicle lubricating oil;

"company station" means a motor spirit station that is wholly or partly occupied by or on behalf of, or by a person holding it or the site upon which it is built as tenant, lessee, licensee or in any other capacity from--

(a) a supplier,

(b) a subsidiary of a company that is a supplier,

(c) a subsidiary of a company of which a supplier is also a subsidiary, or

(d) a holding company of a company that is a supplier;

In this definition--

(i) "company" has the meaning that it has in the Companies Act, 1963 ;

(ii) "holding company" and "subsidiary" have the meanings that they would have in section 155 of the Companies Act, 1963 , if--

(I) in subsection (1)(a) of that section "one fifth" were substituted for "half" in subparagraphs (ii) and (iii), and

(II) in subsection (2) of that section "holder or holders of one or more" were substituted for "holders of all or a majority";

(iii) "supplier" means a person who is a wholesaler or who imports or produces motor spirit or motor vehicle lubricating oil;

"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;

"licence" means an agreement in writing (not being a lease or other contract of tenancy) between a supplier and another person conferring on that person the right to occupy and operate a company station;

"long-term lease" means a lease or other contract of tenancy for a term of not less than three years;

"mixed brand retailer" means a retailer who sells or offers for sale at a motor spirit station 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 lubricating of a motor vehicle;

"retailer" means 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;

"short-term lease" means a lease or other contract of tenancy for a term of less than three years;

"solus agreement" means an agreement or arrangement between a wholesaler and a person who is or proposes to become a retailer (other than a retailer at a company station) 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 retailer at a company station) who is a party to a solus agreement that is in force;

"supplier", in relation to a company station, means the person who, for the purposes of the definition of "company station" in this Article, is the supplier in relation to that station and includes the personal representatives, the predecessors in title and the successors in title of the supplier;

"wholesaler" means any person who sells or offers for sale motor spirit or motor vehicle lubricating oil or both such spirit and such oil to any person for resale, whether by wholesale or by retail, or to a commercial consumer.

(2) References in this Order, in relation to a lease, sublease or other contract of tenancy or a licence, of a motor spirit station, to a lessee, sublessee, tenant or licensee are references to the person who holds the station under the lease, sublease or other contract of tenancy or the licence, as the case may be, and include references to the personal representatives and successors in title of the lessee, sublessee, tenant and licensee, respectively.

3. (1) Subject to the provisions of this Order, a wholesaler shall not differentiate, either directly or indirectly, between one retailer and another in relation to the terms or conditions on or subject to 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 solus 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 relation to the purchase and sale of motor spirit and that motor spirit is sold or offered for sale at the reduced price aforesaid by the wholesaler to all retailers who became or become solus retailers pursuant to agreements entered into with the wholesaler after 18th day of December, 1961.

(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 became or become solus retailers pursuant to agreements entered into with the wholesaler after the 18th day of December, 1961.

(4) Nothing in this Article shall prevent a wholesaler from selling or offering to sell motor spirit to retailers at a price that, in the case of single deliveries of motor spirit of less than such quantity as may be specified from time to time by the wholesaler, is increased by an amount that is reasonable and justifiable having regard to the total cost to the wholesaler of all such deliveries.

(5) Nothing in this Article shall prevent the inclusion in a solus agreement or in an agreement between the operator of a company station and a wholesaler of a condition providing that each delivery of motor spirit to the motor spirit station concerned by the wholesaler concerned shall be of not less than a specified amount notwithstanding the fact that the minimum amount so specified is not the same as the minimum amounts specified in corresponding conditions in other solus agreements entered into by the said wholesaler or in other agreements entered into by retailers at company stations and the said wholesaler.

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 18th day of December, 1961), 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 ten 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 ten 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 a term or condition requiring the retailer to purchase motor vehicle lubricating oil from the wholesaler.

8. (1) A wholesaler shall not--

(a) impose, in relation to the supply of motor vehicle lubricating oil to a retailer or a person who proposes to become 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--

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

(B) a specified part, however expressed, of the supply of motor vehicle lubricating oil required by him for sale at that station exclusively from the wholesaler,

(ii) to purchase from the wholesaler a quantity of motor vehicle lubricating oil bearing a specified ratio to the quantity of motor spirit purchased by him from the wholesaler,

(iii) 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,

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

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

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

(vii) 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

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

(2) Nothing in this Article or in Article 7 of this Order shall prevent a wholesaler from prohibiting, preventing or restricting the use by the operator of a motor spirit station, or from penalising such operator in respect of the use by the operator, of equipment owned by the wholesaler for the purposes of or in connection with the dispensing of motor vehicle lubricating oil supplied by another wholesaler.

9. A wholesaler shall furnish to the Examiner on request, all such information as the Examiner may reasonably require from time to time for the purpose of any investigation by the Examiner of the operation or proposed operation of company stations or of the concessions and facilities, whether financial or not, offered or given by wholesalers to retailers at company stations and to other retailers.

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 vehicle 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 any other person in respect of the prices at which motor spirit of the wholesaler's brand or brands or motor vehicle lubricating oil of the wholesaler's brand or brands is sold or offered for sale by that other person to retailers for resale or to commercial consumers or in relation to any act done by the wholesaler pursuant to the agreement, arrangement or understanding.

13. A wholesaler or a retailer shall not enter into any agreement, arrangement or understanding with another wholesaler or a 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 8, 12, 13, 14, 23 or 24 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 different from 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 credit worthiness 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 Examiner, furnish to the Examiner 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 Examiner as soon as may be, of any change in the terms or conditions.

19. (1) Subject to the provisions of this Article, a person shall not operate as a company station a motor spirit station that was not operated as a company station immediately before the 15th day of June, 1972.

(2) This Article shall not apply in relation to a motor spirit station the construction of which was completed after the 15th day of June, 1972, if the whole of the station at and below ground level was completed not later than the 13th day of July, 1972.

(3) Subject to paragraphs (4) and (5) of this Article, this Article shall not apply in relation to a company station in respect of which the following conditions are complied with:

(a) the station is a station whose supplier is not the supplier in relation to more than twenty company stations, or

(b) (i) the station is a station that commenced or recommenced business as a company station on a date (referred to subsequently in this paragraph as "the commencement date") on or after the 1st day of March, 1981, and

(ii) another company station in relation to which the supplier referred to in subparagraph (b) (i) of this paragraph was the supplier ceased to carry on business as a company station in relation to which the said supplier was the supplier during the period of 12 months before the commencement date, and

(iii) not more than one other company station in relation to which the supplier aforesaid is the supplier and to which, by virtue of this subparagraph, this Article does not apply, commenced business as a company station in relation to which the supplier aforesaid is the supplier during the calendar year in which the commencement date occurs, and

(iv) the supplier aforesaid is not connected with any other wholesaler in the State, directly or indirectly, in respect of management, ownership or interest in profits and does not supply motor spirit of the same brand as any motor spirit supplied by another wholesaler.

(4) The person proposing to operate a company station shall notify the Examiner in writing before the date on which the station commences business of its location and its storage capacity for motor spirit, the number of pumps for delivering motor spirit at the station, the capacity in which that person proposes to operate the station, that is to say, whether as or on behalf of a supplier or as the person holding it or the site upon which it is built as tenant, lessee, sublessee, licensee or in any other capacity from a supplier, and, if appropriate, of the name, location and date of cessation of business of the company station in relation to which the condition specified in paragraph (3)(b)(ii) of this Article is satisfied.

(5) Where the Examiner is notified, pursuant to paragraph (4) of this Article, of the name and location of a company station in relation to which the condition specified in the said paragraph (3)(b)(ii) of this Article is satisfied, a person shall not operate that station as a company station after the cesser in relation to that station referred to in the said paragraph (3)(b)(ii) unless it recommences business as a company station by virtue of paragraph (3)(b)(i) of this Article.

20. (1) Where it is a condition of the supply of motor spirit by a wholesaler to a retailer other than a retailer at a company station or a solus retailer that each delivery of motor spirit by the wholesaler to the retailer shall be of not less than a specified amount, the specified amount shall not be more than--

(a) in case the delivery consists of one grade only of motor spirit, 4,000 litres, and

(b) in case the delivery consists of more than one grade of motor spirit, 5,000 litres.

(2) A condition in an agreement made before the commencement of this Order and in force after such commencement compliance with which would, but for this paragraph, be a contravention of paragraph (1) of this Article shall have effect as if it provided for delivery of the appropriate maximum amount of motor spirit specified in the said paragraph (1).

21. A wholesaler shall not refuse to supply motor spirit to a retailer at a motor spirit station at any time during the period of three months immediately following the supply by the wholesaler or motor spirit to that retailer at that motor spirit station unless the wholesaler has notified the Examiner in writing of his intention so to refuse and of his reasons for doing so.

22. (1) Where an agreement or arrangement between a wholesaler and a retailer provides for the repayment of a loan made by the wholesaler to the retailer by one payment upon a specified date, the retailer may, notwithstanding any provision of the agreement or arrangement, repay the loan by a single payment made at any time before that date.

(2) Where an agreement or arrangement between a wholesaler and a retailer provides for the repayment in instalments on specified dates of a loan made by the wholesaler to the retailer, the retailer may, notwithstanding any provision of the agreement or arrangement, pay all the outstanding instalments by a single payment made at any time before the date upon which the then next instalment is required to be paid.

(3) Where a repayment is made at any time pursuant to this Article, the amount of the interest, if any, payable by the retailer concerned to the wholesaler concerned in respect of the loan shall be reduced by such amount, if any, as may be appropriate having regard to the date and amount of the repayment, and the amount of the interest, as so reduced, shall be paid to the wholesaler at the same time.

23. (1) There shall not be included in a solus agreement or a long-term lease of a company station a term or condition that provides that the solus retailer, or the lessee, concerned shall offer motor spirit for sale by retail to the public at specified times at any motor spirit station to which the agreement relates.

(2) Paragraph (1) of this Article shall not be construed as prohibiting the inclusion in a solus agreement or a long-term lease of a company station of a term or condition that provides that the time or times at which motor spirit is offered for sale by retail to the public by the solus retailer, or the lessee, concerned at the motor spirit station concerned shall be or include the time or times at which it is reasonable in all the circumstances that motor spirit should be offered for sale by retail to the public at that motor spirit station.

24. A wholesaler shall not prohibit, restrict or penalise the display on a pump used for dispensing motor spirit when sold by retail to the public at a motor spirit station an indication of the brand of motor spirit being dispensed by the pump.

25. Subject to the provisions of this Order, a supplier shall not sell or supply motor spirit to, or for sale at, a company station unless the station is operated by--

(a) an employee of the company,

(b) a person holding the station as lessee of the supplier under a long-term lease, or a short-term lease, or as tenant under a tenancy granted pursuant to the Landlord and Tenant (Amendment) Act, 1980 (No. 10 of 1980),

(c) a person holding the station as sublessee or tenant under a sublease or other contract of tenancy from a lessee or tenant referred to in subparagraph (b) of this Article, or

(d) a person holding the station as licensee under a licence in respect of the station granted by the supplier and complying with the provisions of this Order.

26. (1) Where upon the date of the making of this Order a person holds a company station as lessee or tenant of the supplier under a short-term lease--

(a) the person may, not later than--

(i) three months after the commencement of this Order, or

(ii) one month after the date upon which compliance by the supplier with paragraph (4) of this Article was completed, whichever is the later, opt either--

(I) to surrender the lease and to be granted by the supplier a licence in respect of the station complying with the provisions of this Order, or

(II) to continue to hold the station as lessee under the said short term lease or as tenant of the supplier under the tenancy existing upon the date aforesaid,

(b) the person may, upon the expiry of the lease or tenancy, or of any lease or tenancy granted under this paragraph, if the supplier grants him a new lease or tenancy having the same duration as that of the expired lease or tenancy but otherwise containing such terms and conditions as the supplier thinks fit, hold the station as lessee or tenant under the lease or tenancy during its currency in accordance with its terms.

(2) An option under this Article shall be exercised by the delivery by or on behalf of the person concerned to the supplier concerned of a notification in writing giving particulars of the company station concerned and of the option exercised and giving the name and address of the person.

(3) (a) Where a person exercises the option specified in paragraph (1) of this Article in accordance with subparagraph (a) (i) of that paragraph, the supplier concerned shall grant him a licence in respect of the company station concerned complying with the provisions of this Order.

(b) (i) Where a person does not exercise the said option within the time specified in the said paragraph, the person shall be deemed to have exercised the option to be granted a licence in accordance with the said subparagraph (a) (i) and the supplier concerned shall grant him a licence in respect of the company station concerned complying with the provisions of this Order.

(ii) Clause (i) of this sub-paragraph does not apply to a person who, upon the expiration of the lease under which, upon the date of the commencement of this Order, he held the company station concerned, is entitled to a new tenancy under the Landlord and Tenant (Amendment) Act, 1980 (No. 10 of 1980).

(4) A person to whom this Article applies shall, within two months of the commencement of this Order--

(a) be informed by the supplier concerned of his rights under paragraph (1) (a) of this Article, and

(b) be furnished by the said supplier with a draft of the licence which, pursuant to paragraph (1) (a) (i) of this Article, the supplier is prepared to grant to him in respect of the station concerned.

27. (1) Subject to the provisions of this Order--

(a) a licence shall be for a term of three years and its terms shall be fair and reasonable and, upon its expiration, the supplier concerned shall grant to the licensee another licence in respect of the company station concerned.

(b) the supplier concerned may, for any of the reasons specified in Article 28 of this Order, terminate a licence during the currency of its term in accordance with provisions of this Order but, in the case of a licence granted after the date of the making of this Order, the supplier shall not terminate it unless the reasons for its termination are among those stated in the licence as entitling the supplier, pursuant to this Article, to terminate it,

(c) upon the expiration of a licence, the supplier concerned may, for any of the reasons specified in Article 29 of this Order, refuse, in accordance with the provisions of this Order, to grant to the licensee another licence in respect of the company station concerned, but, in the case of a licence granted after the date of the making of this Order, the supplier shall not so refuse unless the reasons for the refusal are among those stated in the licence as entitling the supplier, pursuant to this Article, to refuse to grant the licensee another licence in respect of the said station,

(d) where upon the commencement of the term of a licence the age of the licensee is within three years of the maximum age (being not less than 65 years) at which a person is permitted by the supplier concerned to operate a company station in relation to which it is the supplier, the term of the licence shall be equal to the difference between the age of the licensee upon such commencement and the maximum age aforesaid.

(2) The term of a licence and the reasons for which the licence may be terminated or for which the supplier who granted it may refuse to grant another licence to the licensee upon its expiration in respect of the company station to which the expired licence relates shall, unless it is a licence granted before the date of the making of this Order, be stated in the licence.

(3) A licence that is in force upon the date of the making of this Order shall be deemed to be a licence under this Order and shall have effect accordingly and, if it will expire less than three years after the commencement of this Order, it shall be deemed to be a licence whose term expires three years after its commencement and shall have effect accordingly.

(4) Notwithstanding paragraph (1) (a) of this Article a supplier may--

(a) grant a licence for a term not exceeding one year in respect of a company station to a person who prior to such grant has not operated a company station in relation to which the supplier aforesaid was the supplier, and

(b) grant a licence in respect of a company station for a term not exceeding six months commencing on the determination referred to subsequently in this subparagraph to the lessee, tenant or licensee of or in respect of the station under a lease or other contract of tenancy, or a licence, that is determined in accordance with its terms but before the expiration of its term,

but the holder of a licence granted under this paragraph shall not be entitled to be granted another licence upon its expiration.

28. (1) Subject to the provisions of this Order, a supplier shall not terminate a licence granted by him during its currency.

(2) A licence may be terminated during its currency by the supplier who granted it for any of the following reasons, but not otherwise:

(a) if the licensee requests the supplier in writing to terminate the licence,

(b) if the licensee--

(i) does not carry out any statutory obligations imposed on him (whether by virtue of the licence or otherwise) in relation to the company station the subject of the licence or its operation,

(ii) fails persistently to make to the supplier within two months of the due dates payments due to him by the licensee in respect of goods supplied to the licensee for sale by retail to the public at the station or otherwise due under the licence,

(iii) ceases, other than for reasons outside his control, for a period of more than seven consecutive days, to offer motor spirit for sale by retail to the public at the station,

(iv) fails to comply with a term or condition of the licence (other than a term or condition relating to a matter referred to in clause (i), (ii) or (iii) of this subparagraph) and, having been requested in writing by the supplier after the commencement of the non-compliance to comply with the term or condition, continues the non-compliance,

(v) fails, in the operation of the station, to observe the standards required by the supplier to be observed by those operating company stations under licences granted by the supplier, or

(vi) is unfit, owing to physical or mental infirmity, insolvency or any other cause, to operate the station,

(c) if the station ceases to carry on business for reasons outside the supplier's control and licensee's control and the cesser is likely to be permanent.

(3) Where a licence is terminated in pursuance of paragraph (2) (c) of this Article, compensation in respect of the termination shall be paid by the supplier who granted the licence to the licensee and the amount of the compensation shall be calculated in accordance with Article 32 of this Order.

(4) Where a licence is terminated in pursuance of clause (iv) or (v) of paragraph (2) (b) of this Article, the licensee may refer to arbitration the question whether the supplier concerned was entitled to terminate the licence, and the supplier shall join in the reference and the licensee and the supplier shall be bound by the award of the arbitrator in the arbitration.

(5) (a) Subject to subparagraph (b) of this paragraph a supplier shall give to a licensee whose licence he intends to terminate notice in writing of such intention and shall specify in the notice the reasons for the termination and the date upon which the termination takes effect, being a date not less than one month after the date of the giving of the notice.

(b) (i) Where a supplier proposes to terminate a licence pursuant to paragraph (2) of this Article and he is satisfied upon reasonable grounds that because of acts or omissions of a licensee holding a licence granted by the supplier, the continued operation of the company station the subject of the licence by the licensee could result in injury or damage to persons or property, the supplier may give to the licensee notice in writing of his intention to terminate the licence upon a date (including the date of the day on which the notice is given) less than one month after the date of the giving of the notice and the termination shall take effect upon such day as may be specified for that purpose in the notice.

(ii) Where a supplier proposes to terminate a licence in pursuance of paragraph (2) (c) of this Article, he may give to the licensee notice of his intention to terminate the licence upon a date (including the date of the day upon which the notice is given) less than one month after the date of the giving of the notice:

Provided that the date of such termination is as close as circumstances allow to being at least one month after the date of the giving of the notice.

(c) There shall be included in a notice under this paragraph in relation to the termination of a licence for a reason specified in paragraph (2) (c) of this Article a statement of the rights conferred on the licensee by paragraph (3) of this Article.

(d) There shall be included in a notice under this paragraph in relation to the termination of a licence for a reason specified in clause (iv) or (v) of paragraph (2) (b) of this Article a statement of the rights conferred on the licensee by paragraph (4) of this Article.

(e) A notice under this paragraph that does not comply with the provisions of this Order shall not operate to terminate the licence to which it relates.

(f) A supplier shall ensure that a notice given by him under this paragraph complies with the provisions of this paragraph.

29. (1) Subject to the provisions of this Order, upon the expiration of a licence, the supplier who granted it shall not refuse to grant the licensee another licence in respect of the company station concerned.

(2) Upon the expiration of a licence, the supplier who granted it may refuse to grant to the licensee another licence in respect of the company station concerned for any of the following reasons, but not otherwise:

(a) if the licensee requests the supplier in writing not to grant the other licence,

(b) if the licensee--

(i) has failed or neglected to carry out any statutory obligations imposed on him (whether by virtue of the licence or otherwise) in relation to the company station or its operation,

(ii) fails persistently to make to the supplier within two months of the due dates payments due to him by the licensee in respect of goods supplied to the licensee for sale by retail to the public at the station or otherwise due under the licence,

(iii) ceases, other than for reasons outside his control, for a period of more than seven consecutive days, to offer motor spirit for sale by retail to the public at the station,

(iv) fails to comply with a term or condition of the licence (other than a term or condition relating to a matter referred to in clause (i) (ii) or (iii) of this subparagraph) and, having been requested in writing by the supplier after the commencement of the non-compliance to comply with the term or condition, continues the non-compliance,

(v) fails, in the operation of the station to observe the standards required by the supplier to be observed by those operating company stations under licences granted by the supplier, or

(vi) is unfit, owing to physical or mental infirmity, insolvency or any other cause, to operate the station.

(c) if the licensee exceeds the maximum age (being not less than 65 years) at which a person is permitted by the supplier concerned to operate a company station in relation to which it is the supplier,

(d) if the supplier requires vacant possession of the station for the purposes of developing the site or disposing of his interest therein or operating the station through an employee of the supplier,

(e) if the supplier proposes to terminate the operation of the station by persons referred to in paragraphs (b), (c) and (d) of Article 25 of this Order for a period of not less than 12 months.

(3) Where a supplier refuses, for a reason specified in subparagraph (d) or (e) of paragraph (2) of this Article, to grant another licence upon the expiration of a licence, compensation in respect of the refusal shall be paid by the supplier to the licensee and the amount of the compensation shall be calculated in accordance with Article 32 of this Order.

(4) Where a supplier refuses, for a reason specified in clause (iv) or (v) of paragraph (2) (b) of this Article, to grant another licence upon the expiration of a licence, the licensee may refer to arbitration the question whether the supplier was entitled to refuse to grant the other licence and the supplier shall join in the reference and the licensee and the supplier shall be bound by the award of the arbitrator in the arbitration.

(5) (a) Where the supplier who granted a licence intends, upon its expiration, to refuse to grant to the licensee another licence in respect of the company station concerned, he shall, not less than three months before such expiration, give to the licensee notice in writing of such intention and shall specify in the notice the reasons for the intended refusal.

(b) Where--

(i) the reasons stated in a notice under this paragraph for refusal to grant a licence in respect of a company station upon the expiration of the previous licence consist only of reasons specified in subparagraph (d) or (e) of paragraph (2) of this Article, and

(ii) motor spirit is offered for sale by retail to the public at the station by a person referred to in paragraph (b), (c) or (d) of Article 25 of this Order within the period of 12 months immediately following such expiration, the amount of compensation payable to the person in respect of the refusal under Article 32 of this Order shall be increased by one hundred per cent.

(c) There shall be included in a notice under this paragraph in relation to the refusal to grant a licence for a reason specified in sub-paragraph (d) or (e) of paragraph (2) of this Article a statement of the rights conferred on the person to whom the notice is given by paragraph (3) and (5) of this Article.

(d) There shall be included in a notice under this paragraph in relation to the refusal to grant a licence for a reason specified in clause (iv) or (v) of paragraph (2) (b) of this Article a statement of the rights conferred on the person to whom the notice is given by paragraph (4) of this Article.

(e) Upon the termination of a licence, a supplier may not refuse to grant to the licensee another licence in respect of the company station concerned unless a notice under this paragraph that complies with the provisions of this Order has been duly given to the licensee in respect of the refusal.

(f) A supplier shall ensure that a notice given by him under this paragraph complies with the provisions of this Order.

30. Where a person is, or is entitled to be, granted a licence (in this Article referred to as "the new licence") by a supplier in respect of a company station upon the expiration of another licence or pursuant to Article 26 of this Order and there is a dispute or difference between the person and the supplier in relation to--

(a) the amount of the payment or payments to be made by the person to the supplier under the new licence,

(b) the times during which the person is, or is to be, required under the new licence to offer motor spirit for sale by retail to the public at the station,

(c) other activities that the person is, or is to be, required under the new licence to carry on or not to carry on at the station,

(d) restrictions or prohibitions imposed, or to be imposed, on the person under the new licence in relation to the offering for sale by retail by him during the currency of the new licence of motor spirit at any place other than the station or at any place in a specified area other than the station,

the person may refer to arbitration the dispute or difference and the supplier shall join in the reference and the person and the supplier shall be bound by the award of the arbitrator in the arbitration.

31. (1) A licence or lease in respect of a company station granted after the commencement of this Order that makes provision for any of the following matters shall, to the extent, but only to the extent, of such provision be null and void:

(a) prohibiting the licensee or the lessee from operating or owning, after the expiration of the licence or lease, as the case may be, a motor spirit station or a motor spirit station in relation to which specified suppliers are the suppliers or restricting or controlling such operation or ownership,

(b) requiring the licensee or the lessee to make available to the supplier concerned for examination by him or on his behalf accounts and records kept in respect of the company station during the currency of the licence or lease,

(c) requiring the licensee or the lessee to pay all or part of the capital expenditure (including interest on capital) incurred by the supplier concerned in respect of work or installation at the station for the purposes of the sale by retail to the public at the station of products supplied by that supplier unless--

(i) the subject of the capital expenditure becomes the property of the licensee or the lessee, and he is entitled to compensation in respect thereof upon his ceasing to be the occupier of the station, or

(ii) the licensee or the lessee consents in writing to the incurring of such expenditure and indicates in writing that he does not object to the manner in which and the person or persons by whom it is defrayed,

(d) requiring the licensee or the lessee to participate in or contribute money to any scheme or arrangement designed to promote the sale by retail to the public of products supplied by the supplier concerned where the participation or contribution has the effect of reducing the net profit margin of the station per unit of sales by retail to the public of products supplied by the supplier, or

(e) the waiver or modification of any rights or obligations conferred by or under any statute (including rights conferred by this Order) on the person or the supplier.

(2) Paragraph (1) (c) of this Article shall not be construed as prohibiting the taking into account to a reasonable extent of the amount of any capital expenditure of the kind referred to in the said paragraph (1) (c) in determining or varying the amounts payable by a person under a lease or licence of a company station granted by a supplier upon the expiration of another lease or licence of the station granted by the supplier to the person.

32. (1) (a) The amount of any compensation payable under this Order by a supplier to a person in respect of the termination of, or a refusal to grant, a licence shall be the sum of the following:

(i) a sum equal to 1/180th of his net pre-tax income from the operation of the company station concerned during the period of 12 months immediately preceding the termination or refusal, as the case may be, for every month (not exceeding 180) of the period immediately preceding the termination or refusal during which the person continuously occupied that company station or another company station in relation to which the supplier aforesaid was the supplier, under a licence or a short term lease or, before the commencement of this Order, under any other arrangement with the supplier,

(ii) a sum equal to the total amount of the redundancy payments payable to employees of the person under the redundancy Payments Acts, 1967 to 1979, by reason of redundancy caused by the termination or refusal, and

(iii) a sum equal to the value, at the date of the termination or the date of the refusal (that is to say, the date upon which, if its grant had not been refused, the licence would have commenced), of stocks of motor spirit, motor vehicle lubricating oil, and other goods, supplied by the supplier and in merchantable condition at the company station aforesaid upon the date of the termination or the date of the refusal, as the case may be.

(b) In subparagraph (a) of this paragraph "net pre-tax income" means gross profits on sales during the period mentioned in that subparagraph at the company station concerned after deduction of--

(i) all normal operating costs during that period in respect of the station (other than the remuneration during that period of the person to whom the compensation under this paragraph is payable in respect of work done by him at or in relation to the station), and

(ii) any amounts payable to the supplier concerned by the person aforesaid in relation to the station in respect of that period other than such amounts otherwise taken into account in calculating the gross profits aforesaid,

(2) Where there is a question whether compensation under this Order is payable to a person by a supplier or a dispute or difference as to the amount of such compensation, the person may refer to arbitration the question, dispute or difference and the supplier shall join in the reference and the person and the supplier shall be bound by the award of the arbitrator in the arbitration.

33. (1) A reference to arbitration under this Order shall be to an arbitrator appointed by the President of the Incorporated Law Society of Ireland.

(2) Where, after a reference to arbitration is made under this Order of a question relating to a company station and before the award is made in the arbitration, the licence in respect of the station would, but for this paragraph, expire, the licence shall, notwithstanding anything in this Order, continue in operation until the award is made and shall then expire.

34. The Restrictive Practices (Motor Spirit and Motor Vehicle Lubricating Oil) Orders, 1961 to 1980, are hereby revoked.

GIVEN under my Official Seal, this 4th day of March, 1981.

DESMOND O' MALLEY,

Minister for Industry, Commerce and Tourism.

EXPLANATORY NOTE.

The effect of this Order is to consolidate with some modifications and additions the provisions of the Restrictive Practices (Motor Spirit and Motor Vehicle Lubricating Oil) Orders 1961 to 1980. The main amendments relate to restrictions on the opening of additional company-owned stations, repayment of loans by companies to retailers, trading hours, conditions attached to licences, the tenure of short-term lessees of company-owned stations, compensation for retailers in certain circumstances and arbitration in case of disputes.

The Act requires that the Order be confirmed by an Act of the Oireachtas before it will have the force of law.