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 a lease between L&C Properties Ltd and Peter Mark.

2. The notification concerns the lease of shop units 113/114 and 207/208 at The Square Shopping Centre, Tallaght, Co. Dublin between L. & C Properties Ltd as landlord and Peter Mark as tenant.

3. L & C Properties Ltd is engaged in the business of property owners and letting of shop units at The Square Shopping Centre. Peter Mark is an unlimited company carrying on the business of hairdressing with approximately 48 outlets in the State.

4. The notified shopping centre lease was executed on 23 January 1990 for a period of 9,980 years from 1 October 1990. The restricted user clauses in the lease are as follows:

(a) Under clause 3.2(3) of the agreement the tenant covenants

"Not, without the prior consent in writing of the Landlord or its Agent thereunto lawfully authorised to use or to permit or suffer or allow the Demised Premises or any part thereof, to be used for any purpose other than a Ladies and Gents Unisex Hairdressing Salons, Beauty Treatment, Solarium and for the sale of fashion and beauty products....."

Further in this clause the Landlord also covenants

".....that the tenant shall have exclusive user on levels 1 and 2 in the Centre for Ladies and Gents Unisex Hairdressing, beauty treatment, Solarium and shall also be permitted to sell fashion and beauty products but not on an exclusive basis...."

(b) Under clause 3.2(5) the tenant covenants with the landlord

"Not, to assign transfer, underlet, mortgage, charge or 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 licensee or concessionaire except with the previous consent in writing of the Landlord 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 L&C Properties Ltd and Peter Mark 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 L&C Properties Ltd and Peter Mark 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 L&C Properties Ltd and Peter Mark in relation to the lease of the premises at Units 113/4 and 207/8 at The Square Shopping Centre, Tallaght, Co. Dublin notified under Section 7 on 30 September 1992 (notification no. CA/1023/92E), does not offend against Section 4 (1) of the Competition Act, 1991.

For the Competition Authority

Des Wall

Member

13 October 1993