The Gazette 1978

GAZETTE

JULY-AUGUST

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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