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Irish Competition Authority Decisions
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Superquinn/Tenants at Superquinn S.C. Swords [1993] IECA 122 (13th October, 1993)
URL: http://www.bailii.org/ie/cases/IECompA/1993/122.html
Cite as:
[1993] IECA 122
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Superquinn/Tenants at Superquinn S.C. Swords [1993] IECA 122 (13th October, 1993)
COMPETITION
AUTHORITY
Competition
Authority Decision of 13 October 1993 relating to a proceeding under Section 4
of the Competition Act, 1991.
Notification
No CA/889/92E - Superquinn / Tenants at Superquinn Shopping Centre, Swords.
Decision
No: 122
Price £0.30
£0.70 incl. postage
Notification
No. CA/889/92E Superquinn/Tenants at Superquinn Shopping Centre, Swords
Decision
No. 122
Introduction
1. Notification
was made by Superquinn on 30 September 1992 with a request for a certificate
under
Section 4(4) of the
Competition Act, 1991, or in the event of refusal by
the Competition Authority to issue a certificate, a licence under
Section 4(2)
in respect of leases between Superquinn and the tenants of shop units at
Superquinn Shopping Centre, Swords, Co. Dublin.
The
Facts
(a) The
subject of the notification
2. The
notification concerns the leases of shop units at Superquinn Shopping Centre,
Swords, between Superquinn as lessor and 8 lessees.
(b) The
parties involved
3. Superquinn
are involved in the business of trading as a supermarket and in the letting of
shop units at shopping centres. The tenants are involved in the various retail
and service activities at the shopping centre.
(c) The
notified arrangements
4. The
sample lease submitted in draft form was for a period of 35 years from 1
December 1986 with Superquinn Ltd as the Lessor. The restricted user clauses
in this lease are as follows:-
(a) Under
clause B.13 the tenant covenants
"Not
without the prior consent in writing of the Lessor.....to use or permit or
suffer or allow the Demised Unit or any part or parts thereof to be used for
any purpose other than that specified in the Fifth Schedule hereto and for no
other purpose or purposes whatsoever............"
It
is also indicated that similar permitted user restrictions would be inserted in
all leases relating to the centre to ensure diversity of businesses at the
centre.
(b) Under
clause B.46 the tenant covenants
"(a) Not
to assign, underlet or part with or share the possession or occupation of any
part of the Demised Unit........under any circumstances whatsoever.
(b) Not
to assign, underlet or part with or share the possession of the whole of the
Demised Unit except to a suitable and solvent party and subject to the written
consent of the Lessor.........."
In
addition, there are a number of other standard restrictive covenants and
obligations in the sample lease.
5. The
applicant has indicated that similar requirements attach to each of the
tenancies with the permitted user clause B.13 confining each tenant to
particular specified trading activities.
Assessment
- The applicability of Section 4 (1)
6. The
Authority considers that Superquinn 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 their 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 Superquinn and its tenants do not offend against
Section 4 (1) of the
Competition Act 1991.
The
Certificate
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 Superquinn and the tenants in
relation to the lease of shop units at Superquinn Shopping Centre, Swords,, Co.
Dublin notified under
Section 7 on 30 September 1992 (notification no.
CA/889/92E), do not offend against
Section 4 (1) of the
Competition Act, 1991.
For
the Competition Authority
Des
Wall
Member
13
October 1993
© 1993 Irish Competition Authority