Irish Competition Authority Decisions

1. Notification was made by Peter Mark 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 between Firmount Ltd and Peter Mark.

2. The notification concerns the lease of shop units nos. 118/9, 206 C and 125/7 in St. Stephen's Green Centre, Dublin 2 between Firmount Ltd as Landlord and Peter Mark as tenant.

3. Peter Mark is an unlimited company carrying on the business of hairdressing with approximately 48 outlets in the State including salons at St. Stephen’s Green Shopping Centre. Firmount Limited is engaged in the letting of shop units at the centre.

4. The notified lease which relates to units 125/7 was made on 6 January, 1989 for a period of 35 years from 1 September, 1988. The restricted user clauses in the lease are as follows:

(a) Under clause 4.11.2 the tenant covenants with the landlord:

"Not without the prior consent in writing of the Landlord ..... to use or 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 .... "

Under clause 1, Permitted Business is defined as

"The retail trade or business of ladies upmarket hair salon and beauty salon".

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

"Not to assign, transfer, underlet......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 this lease.

5. The lease in regard to shop units 118/9 and 206C is stated to be in similar terms.

6. The Authority considers that Firmount Ltd and Peter Mark 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 Firmount Limited and Peter Mark do not offend against section 4(1) of the Competition Act, l99l.

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 Firmount Limited and Peter Mark in relation to the leases of premises at St. Stephen's Green Centre, Dublin 2 notified under Section 7 on 30 September 1992 (notification no. CA/1017/92E), do not offend against Section 4(1) of the Competition Act, l99l.

For the Competition Authority

Des Wall

Member

13 October 1993