Irish Competition Authority Decisions

1. Notification was made by Linabbey Limited on 29 September, l992 with a request for a Certificate under Section 4(4) of the Competition Act, l99l, 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 Santa Anita Estates Ltd and Linabbey Ltd.

2. The notification concerns the lease of shop Unit 4, River Valley Shopping Centre, Swords, Co. Dublin between Santa Anita Estates Ltd as landlord and Linabbey Ltd as tenant.

3. Santa Anita Estates Ltd as successor in title is the owner and manager of the River Valley Shopping Centre. Linabbey Ltd trades as a newsagents/confectioner at Unit 4 at the shopping centre.

4. The notified shopping centre lease was executed on 5 December, l986 for a period of 99 years from 1st January, l986. between Elmgrove Developments Ltd as lessor, Santa Anita Estates Ltd as the management company and Michael and Patricia O'Brien as lessee. Santa Anita Estates subsequently acquired the lessor rights while the lessee interest was transferred to Linabbey Ltd in August 1988. The restricted user clauses in the lease are as follows:-

(a) Under clause 12 of the 6th Schedule the tenant covenants

"Not without the prior consent in writing of the Lessor or its Agent thereunto lawfully authorised to use or to permit or suffer or allow the Unit or any part or parts thereof to be used for any purpose other than as a Newsagency, Confectionery and Dealers in all goods normally sold in a Newsagency/Confectionery and for no other purpose or purposes whatsoever ...."

(b) Under the Clause l4 of the 6th Schedule the tenant covenants

"Not to assign, transfer or under-let or part with the possession or occupation of the Unit or any part thereof or suffer any person to occupy the Unit or any part thereof as a Licensee or as a concessionaire BUT SO THAT NOTWITHSTANDING the foregoing the Lessor shall subject to sub-Clause 12 hereof 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 Santa Anita Estates Limited and Linabbey Ltd 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 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 Santa Anita Estates Ltd and Linabbey Ltd does not offend against section 4(1) of the Competition Act l99l.

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 Santa Anita Estates Limited and Linabbey Ltd in relation to the lease of the premises at Unit 4, River Valley Shopping Centre, River Valley, Swords, Co. Dublin notified under Section 7 on 29 September 1992 (notification no. CA/193/92E), does not offend against Section 4(1) of the Competition Act, l99l.

For the Competition Authority

Des Wall

Member

13 October 1993