CAB129-78 — Page 227

ANNEX I

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2 (one a lo muck uti al

DRAFT DEFINITIONOF THE JUSTICIABLE ISSUE FOR A RESTRICTIVE

PRACTICES COMMISSION OR TRIBUNAL Oy Kin

usd For the purposes of an application to the [Court/Commission] under the Act, any restraint on trade imposed by an agreement registered thereunder shall be deemed to be contrary to the national interest unless it is shown that

(a) the restraint is reasonably necessary for the protection of persons not parties to the agreement being consumers or users of goods produced or sold by such parties having regard to any special circumstances affecting the consumption or use of those goods; or

(b) the restraint has conferred or is calculated to confer on such consumers or

users other specific and substantial benefits or advantages; or (c) having regard to the conditions actually obtaining or reasonably foreseen at the time of the application, the removal of the restraint would be calculated to lead to substantial unemployment in any industry or trade or to cause substantial damage to the United Kingdom's export trade or a substantial reduction in the earnings therefrom;

and in any such case it is further shown that the restraint has not operated, and is not calculated to operate to the detriment of the public to any extent or to an extent which is unreasonable.

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ANNEX II

AN ADMINISTRATIVE TRIBUNAL

After defining certain types of agreement which would operate in restraint of trade, and requiring them to be registered, the proposed legislation would go on to say that, where there are grounds for believing that a particular agreement operates against the national interest, the parties to this agreement may be called before a tribunal, the onus being placed upon them to justify the practices in question.

2. The tribunal would be called upon to give a ruling on whether the agreement (or any part of it) was or was not justified by reference to the criteria laid down in the legislation (which it is assumed for present purposes would be on the lines of the definition of the justiciable issue in Annex I).

3. The rulings of a tribunal of this kind would need to be subject to confirmation by a Minister, to whom the right of appeal, if any, would also lie. The legislation would therefore have to lay down the procedure for appeal against the tribunal's rulings, and for confirmation of those rulings. The degree of Parliamentary control could vary according to the nature of the cases, as follows.

4. There are four possibilities:

(i) If the tribunal found that a particular agreement was not contrary to the public interest, and if the Minister agreed, this decision would be recorded in the register, and there would seem to be no reason for seeking formal Parliamentary approval in such cases.

(ii) If the tribunal decided that an agreement was contrary to the public interest, and if the Minister agreed, this decision would have to be given. the force of law. The appropriate procedure, it is suggested, would be for the Minister to lay an Order before Parliament confirming the tribunal's decision. This Order could reasonably be subject to the Negative Resolution procedure.

(iii) The tribunal might decide that an agreement was not contrary to the public interest, but the Minister might disagree and decide that the agreement should be terminated. To give his decision (in which the tribunal would be overruled) the force of law, it would probably be desirable for the Minister's Order to be subject to the Affirmative Resolution procedure.

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