Irish Competition Authority Decisions

1. Notification was made by Quinnsworth 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 sale agreement between H.Williams (Tallaght) Ltd (in liquidation) and Quinnsworth (formerly Light Bite) in relation to a shop unit at Ballybrack Shopping Centre, Ballybrack, Co.Dublin.

2. The notifications concerns the transfer agreement relating to the sale of the supermarket unit, lot 2B at Ballybrack Shopping Centre, Ballybrack, Co. Dublin by the Receiver over the assets of H.Williams (Tallaght) Ltd to Quinnsworth (formerly Light Bite) as purchaser.

3. H.Williams (Tallaght) Ltd, formerly known as Tesco Stores Ireland Ltd, was engaged in the business of supermarkets. Quinnsworth, formerly Light Bite, trades as a supermarket with outlets throughout the State.

4. The Agreement notified was a sale/transfer agreement executed on 19 April 1988 between H.Williams (Tallaght) Ltd (in receivership), the Receiver, Laurence J. Crowley and Light Bite as purchaser. The Agreement provides for the sale of the property to Light Bite subject to the following clause 5 viz. "The purchaser for itself its successors and assigns HEREBY COVENANTS with the vendor that it will not use the premises hereby transferred as a pharmaceutical chemist or newsagency or toy shop."

5. The Authority considers that H. Williams (Tallaght) Ltd and Light Bite (now Quinnsworth) were undertakings at the time the agreement was made and that the notified agreement was an agreement between undertakings. The agreement has effect within the State.

6. The Agreement for the sale of the premises predated the coming into force of the Competition Act and the sale was completed prior to the Act. In the Authority's view, the prohibition in Section 4(1) only applies to a current or continuing contractual commitment subsequent to the coming into force of the Act. As the sale element was discharged prior to the commencement of the Act that aspect of the arrangements does not come within the scope of Section 4(1).

6. The agreement contains the continuing restricted user clause 5 which prevents the use of the premises as a pharmaceutical chemist or newsagency or toy shop. This restriction arises from earlier covenants entered into by the former owner of the Ballybrack Shopping Centre with tenants at the shopping centre. The Competition Authority has already decided that the exclusive user clauses involving the newsagency, sale of toys and pharmacy applying to Ballybrack Shopping Centre do not offend against section 4(1) of the Competition Act (vide decisions No. 41 and 90) for the reasons given in the Notice of the Authority of 2 September 1993 in respect of shopping centre leases (Iris Oifigiul 10 September 1993, pp.665-667).

7. The Authority therefore considers that the notified agreement, and its restricted user clause, 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. The Authority therefore considers that the notified agreement between H.Williams (Tallaght) Ltd (in liquidation) and Quinnsworth (formerly Light Bite) does not offend against Section 4 (1) of the Competition Act 1991.

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 agreement between H.Williams (Tallaght) Ltd (in liquidation) and Light Bite, now Quinnsworth, for the sale of premises at Ballybrack Shopping Centre, Ballybrack, Co. Dublin notified under Section 7 on 30 September 1992 (notification no. CA/602/92E), does not offend against Section 4 (1) of the Competition Act, 1991.

For the Competition Authority

Des Wall

Member

3 December 1993