Irish Competition Authority Decisions

1. Notification was made by Wanze Properties (Ireland) Ltd on 30 September 1992 with a request for a certificate under Section 4(4) of the Competition Act 1991 or, in the event of a refusal by the Competition Authority to issue a certificate, a licence under Section 4(2), in respect of leases with tenants at Hartstown Neighbourhood Shopping Centre.

2. The notification concerns the leases of shop units at Hartstown Neighbourhood Shopping Centre, Hartstown, Clonsilla, Dublin 15 between Wanze Properties (Ireland) Ltd as Lessor and 6 tenants of the centre.

3. Wanze Properties (Ireland) Ltd as successor in title to the earlier landlords, is engaged in the letting of shop units at the shopping centre. The tenants are involved in various retail activities at the shopping centre.

4. The standard shopping centre lease notified contains the following restricted user clauses:-

(a) Under clause 4.26.1 the tenant covenants

"Not without the prior consent in writing of the Landlord .......to use or to permit or suffer or allow the Demised Unit or any part or parts thereof to be used for any purpose other than as set forth in Part II of the First Schedule hereto and for no other purpose or purposes whatsoever...."

(b) Part II of the First Schedule reads under the heading "Permitted User"-"The use of the demised premises........... AND IT IS HEREBY AGREED AND DECLARED that the Landlord shall be entitled in its absolute discretion to refuse its consent to any proposed change of user if the alternative user will be the same as or in competition with any part of the trade or business for the time being carried on upon any other portions of the Centre whether being carried on by the Landlord or otherwise......"."

(c) Under clause 4.25.1 the tenant covenants

" Not to assign transfer or underlet or part with the possession or occupation of the Demised unit or any thereof..... BUT SO THAT NOTWITHSTANDING the foregoing the landlord ....shall not unreasonably withhold its consent......"

In addition, there are a number of other standard restrictive covenants and obligations in the lease.

5. Wanze Properties have advised that similar requirements attach to each lease with the permitted user clause 4.26 restricting each tenant to particular specified trading activities.

6. The Authority considers that Wanze Properties (Ireland) Ltd and the tenants are undertakings and that the notified leases are agreements between undertakings. The agreements have effect within the State.

7. The Authority considers that the notified agreements, and their restricted and exclusive user clauses and the other standard restrictive clauses and obligations, do not have the object or effect of preventing, restricting or distorting competition in trade in any goods or services in the State or in any part of the State, for the reasons given in the Notice of the Authority of 2 September 1993 in respect of shopping centre leases (Iris Oifigiuil 10 September 1993, pp.665-667). The Authority therefore considers that the notified agreements between Wanze Properties (Ireland) Ltd and its tenants do not offend against Section 4 (1) of the Competition Act 1991.

8. The Competition Authority has issued the following certificate.

The Competition Authority certifies that in its opinion, on the basis of the facts in its possession, the agreements between Wanze Properties (Ireland) Ltd and the tenants in relation to leases at Hartstown Neighbourhood Shopping Centre, Hartstown, Clonsilla, Co. Dublin notified under Section 7 on 30 September 1992 (notification no. CA/911/92E), do not offend against Section 4 (1) of the Competition Act, 1991.

For the Competition Authority

Des Wall

Member

13 October 1993