The Gazette 1978

GAZETTE

JULY-AUGUST

19

A Blow for the Restrictive Practices Commission

Anthony Kerr, Lecturer In Law, University College, Dublin

Abbey Fflms Ltd. V. Ireland, The Attorney General and Austin Kennan Judgment of McWflllam J. delivered 21/12/77. The Restrictive Practices Commission has been enquiring into the distribution of feature films in this country for over a year. Just how much progress has been made is uncertain, and the judgment in this case, though clarifying certain fundamental points relating to the powers of the commission, has not helped its progress one iota. Before taking a look at the decision in this case I would like to remind readers of the general background to the case. For many years independent cinema owners in Dublin and in the provinces have complained that an organisation known as the KRS—the Kinemagraphic Renters Society—in conjunction with certain companies in Ireland, has limited their access to recent and, therefore, profitable, films. The KRS control the "first run" houses in Dublin like the Savoy and the Adelphi, and no one would suggest that there is anything wrong with 'Star Wars' opening at the Savoy instead of in some small independent cinema in Rathmines; but the independents maintain that, due to an agreement between the KRS and a certain group of businessmen, they are slowly but surely being driven out of business. The independent cinema owners allege that the "Green group" who own about 40 cinemas in Ireland, including 2 in Dublin are the root cause of their problems. The directors of these companies are also the directors of the plaintiff company in this case—the plaintiff company being a distributor of films which are rented to exhibitors in various parts of the country including Dublin. Given such an allegation and given the fact that the Irish Cinemas Association, which represents the independents, had 104 members in 1970 but now has only 33 members the Restrictive Practices Commission decided that it would investigate. There can be no doubt that suburban and provincial cinemas have been closing down at an alarming rate in the pat few years. The questions the R.P.C. were asking were firstly whether this was due to "restrictive agreements" between the KRS and the Gree Group and, secondly, if it were, what could be done about it. The RPC report appears to answer the first question in the affirmative. It reported that Dublin suburban cinemas were forced to wait up to 14 months for "new" films. This delay was due to the Green Group's "privileged status". The Green Cinemas got the 2nd run after the first runs in the city centre, and the Green continued to run these films as long as they got profitable houses. Only when the commercial value of the films had been fully exploited they were made available to the

independents with the result that suburban and provincial exhibitors were edged out of business. Many that did close were in fact bought by the Green Gruop. This High Court case concerned the investigation by the Restrictive Practices Commission into the distribution of films in this country; Abbey Films Ltd. asked for a declaration that the provisions of s.15 of the Restrictive Practices Act 1972 were repugnant to the Constitution. S. 15 is a very important section, in fact without it the Act would be virtually pointless, The Act provides for the investigation of "unfair trading practices" and the normal scheme of operating consists of an investigation by the examiner of Restrictive Practices—Mr. Austin Kennan—into the "supply or distribution of goods or the provision of services", who then would make a report to the Commission who, in turn, would make an enquiry and then report to the Minister for Industry and Commerce. S.15 is a long, but relatively simple, section which basically provides that, for the purpose of obtaining any information necessary for the exercise by the Examiner of any of his functions, he or any of his authorised officers may, at all reasonable times, enter and inspect premises, require persons to produce any books, documents or records which are in that person's power or control and to give information in relation to any entries in such books, documents and records. Subsection 2 requires the officer in question to inform the owner of premises or any other persons mentioned in subsection 1 of (a) the powers of an officer any other persons mention in subsection 1 of (a) the powers of an officer under S. 15 and (b) the owner's or other person's right to apply to the High Court for a declaration under the section, and sebsection 3 deals with this. It provides that "where the owner of premises which an authorised officer proposes to enter and suspect, or a person on when an authorised officer has made a requirement under this section, refuses access to the officer or refuses to comply with the requirements the owner or other person shall within 7 days thereafter apply to the High Court for a declaration . . . the High Cou r t . .. may at its discretion declare that the exigencies of the common good do not warrant the exercise by the Examiner of the powers conferred on him by this section, and upon the making of such a declaration the Examiner shall either cease to effect the relevant entry or inspection or withdraw the relevant requirement." Subject to this subsection any person who obstructs or impedes an authorised officer in the exercise of a power conferred by this section is guilty of an offence. (ss4). Abbey Films Ltd. alleged that sl5 infringed the provi- sions of the Constitution in 3 respects. (1) subsections 3 and 4 infringed Article 15.5 which provides that the Oireachtas shall not declare acts to

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