Irish Competition Authority Decisions

1. Notification was made by Basil Duffy 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 a lease between Timebrock Ltd and Basil Duffy.

2. The notification concerns the lease of the mini market unit, at Old Bawn Shopping Centre, Firhouse, Tallaght, Co. Dublin between Timebrock Ltd as landlord and Basil Duffy as tenant.

3. Timebrock Ltd is engaged in the letting of shop units at Old Bawn Shopping Centre. Basil Duffy is trading under the Londis name as a mini market at the Shopping Centre.

4. The notified shopping centre lease was executed on 26 April 1990 for a term of 999 years from 1 May 1990. The restricted user clauses in the lease are as follows:

(a) Under clause 4.11.2 of the agreement the tenant covenants

"Not without the prior consent in writing of the Landlord....to use or to permit or suffer or allow the Demised premises or any part or parts thereof to be used for any purpose other than as a retail shop for the Permitted Business and for no other purpose or purposes whatsoever.......

Permitted Business is defined in the lease as

"The retail trade or business of supermarket, off-licence, post office, stores and fuel depot."

(b) Under clause 5.5.1 the Landlord covenants that

"The right of the tenant to carry on the retail business...of butcher, post office, foodstuffs....shall be exclusive to the Tenant" while clause 5.5.3 specifically prohibits the tenant from carrying on particular businesses including hardware, food for consumption on the premises, medical prescriptions, hairdressing etc.

(b) Under clause 4.25.1 the tenant covenants with the landlord

"Not to assign, transfer, underlet... part with the possession or occupation of the Demised premises or any part thereof or suffer any person to occupy the Demised premises or any part thereof as a licensee or as concessionaire 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. The Authority considers that Timebrock Ltd and Basil Duffy 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 Timebrock Ltd and Basil Duffy 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 Timebrock Ltd and Basil Duffy in relation to the lease of the mini market unit at Old Bawn Shopping Centre, Firhouse, Tallaght, Co. Dublin notified under Section 7 on 30 September 1992 (notification no. CA/943/92E), does not offend against Section 4 (1) of the Competition Act, 1991.

For the Competition Authority

Des Wall

Member

13 October 1993