Irish Competition Authority Decisions

1. Notification was made by Marspel Ltd on 24 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 a lease between Killiney Management Shopping Centre Company (Killiney Management) and Marspel Ltd.

2. The notification concerns the lease of a shop unit at Killiney Shopping Centre, Rochestown Ave., Killiney, Co. Dublin between Killiney Management as lessor and Marspel Ltd as lessee.

3. Killiney Management Shopping Centre Co as successor in title is owner and landlord of the Killiney Shopping Centre. Marspel Ltd, under the name "News and Gifts" trades as a newsagent at the shopping centre.

4. The original shopping centre lease notified was executed on 1 October 1974 for a period of 35 years from 7 March 1974 between Merrion Securities Ltd as Lessor and Norman Joseph Harrison as lessee. Subsequently Killiney Management acquired the lessor rights and Marspel Ltd succeeded to the tenancy. The restricted user clauses in the lease are as follows:-

(a) Under clause B.12 of the agreement the lessee covenants

"Not to use or suffer to be used the demised premises for any purpose other than as a Newsagents or Post Office without the consent of the Lessor under its seal first obtained. Provided that the Lessee shall have the sole right to sell and to deal in for cash and otherwise the following products, newspapers and magazines, paperbacks and annuals,(save childrens' annuals) greeting cards and stationery (including pens), sweets and ice-cream, in the shopping centre and the Lessor shall not let any unit (other than the unit let or intended to be let as a supermarket) to any person other than the Lessee with the right to sell and deal in such products as outlined above."

(b) Under clause B.15 of the agreement the lessee covenants

"Not to assign or under-let or part with the possession of the demised premises or any part thereof or otherwise alienate same without the previous written consent of the Lessor such consent not to be unreasonably withheld."

(c) Under Clause C.4.the Lessor covenants with the tenant

"Not to lease or alienate any part of the Rochestown Avenue Shopping Centre without first reserving thereout for the benefit of the Lessee rights and privileges corresponding to the reciprocal to those excepted and reserved in favour of the lessor and others out of these presents."

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

5. The Authority considers that Marspel Ltd and Killiney Management Shopping Centre Co are undertakings and that the notified lease is an agreement between undertakings. The agreement has effect within the State.

6. The Authority considers that the notified agreement, and its restricted and exclusive user clauses and the other standard restrictive clauses and obligations, does 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 agreement between Killiney Management Shopping Centre Company and Marspel Ltd does not offend against Section 4 (1) of the Competition Act 1991.

7. 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 agreement between Killiney Management Shopping Centre Company and Marspel Ltd in relation to the lease of the premises at Killiney Shopping Centre, Rochestown Avenue, Killiney, Co. Dublin notified under Section 7 on 24 September 1992 (notification no. CA/105/92E), does not offend against Section 4 (1) of the Competition Act, 1991.

For the Competition Authority

Des Wall

Member

13 October 1993