Irish Competition Authority Decisions

1. Notification was made on 30 September, l992 by Peter Mark 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 Roches Stores Limerick Ltd and Peter Mark.

2. The notification concerns the lease of a premises at Unit 9, Corrib Shopping Centre, Galway between Roches Stores Limerick Limited as landlord and Peter Mark as tenant.

3. Roches Stores Limerick Limited is a property owning company of the Roches Stores chain and is engaged in the letting of shop units at the Corrib Shopping Centre. Peter Mark is engaged in the business of hairdressing with 48 outlets in the State including the salon at Corrib Shopping Centre.

4. The shopping centre lease notified is in draft form and covers a term of 30 years from 1 May 1991. 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 or its Agency thereunto lawfully authorised to use or to permit or suffer or allow the Demised Premises or any part or parts thereof to be used for any purposes other than as a retail shop for the Permitted business and for no other purpose or purposes whatsoever ..................

(b) Under Clause l "the Permitted Business" is defined as

"The retail trade or business of Ladies & Gents Hairdressing Salon, and for the sale of beauty products and for carrying out beauty treatment including sunray treatment and as a Solarium."

(c) In Clause 4.25.1 the tenant covenants with the landlord:-

"Not to assign, transfer, underlet, charge, mortgage, encumber, hold on trust for another 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 a Licensee or as concessionaire BUT SO THAT NOTWITHSTANDING the foregoing the Landlord shall not unreasonably withhold its consent to an assignment, transfer under-letting, charging, mortgaging or encumbering of the entire of the Demised Premises ......".

(d) By way of side letter dated 19 March 1992 the Landlord has indicated

"......it is Roches' policy that no one trade should be over represented in the centre and that where possible only a single shop unit in the centre should be used for any specific trade or service with the exception of fashion......."

In addition there are a number of other standard restrictive covenants and obligations in the lease.

5. The Authority considers that Roches Stores Limerick Limited 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 Roches Stores Limerick Limited and Peter Mark 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 Roches Stores Limerick Limited and Peter Mark in relation to the lease of a premises in Corrib Shopping Centre, Galway, notified under Section 7 on 30 September 1992 (notification no. CA/1021/92E), does not offend against Section 4 (1) of the Competition Act, l99l.

For the Competition Authority

Des Wall

Member

13 October 1993