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Cite as: [1993] IECA 156

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Ballymun Developments Ltd/Tenants of Ballymun S.C. (older tenancies) [1993] IECA 156 (3rd December, 1993)

Notification No: CA/l097/92E - Ballymun Developments Limited /Tenants of Ballymun Shopping Centre (Older tenancies)

Decision No: 156

Introduction

1. Notification was made by Ballymun Developments Limited on 30 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 standard lease between Ballymun Developments Limited and its tenants.

The Facts

(a) Subject of the notification

2 The notification concerns the standard lease relating to the older tenancies covering 34 of the shop units in the Ballymun Shopping Centre, Ballymun, Dublin 9 between Ballymun Developments Limited as landlord and the tenants.

(b) The parties involved

3 Ballymun Developments Limited is a limited liability company and it is the owner and landlord of the Ballymun Shopping Centre. The other parties are the tenants of the shop units who are involved in various trading and service activities at the shopping centre.

(c) The notified arrangements

4. The notified standard lease contains the following restricted user clauses viz.

(a) Under clause l0 of the Tenant's Covenants the tenant covenants "To use the demised premises for the purpose of only and not without the Landlord's consent in writing which shall not be unreasonably withheld to use or permit or suffer the same or any part thereof to be used for any other purpose."

(b) Under clause l2 of the Tenant's Covenants the tenant covenants "Not to assign, sub-let, part with or share possession of the demised premises or any part thereof without the consent in writing of the Landlord (such consent not to be unreasonably withheld)...."

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

5. Ballymun Developments have supplied details of the permitted user under clause 10 applying to each lease whereby the tenant is restricted to particular specified trading or service activities.

Assessment - The Applicability of Section 4(1)

6. The Authority considers that Ballymun Developments Limited 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 the 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, l993 in respect of shopping centre leases (Iris Oifigiuil of l0 September, l993, pp.665-667). The Authority therefore considers that the notified agreements between Ballymun Developments Limited and its tenants do not offend against Section 4(1) of the Competition Act, l99l.

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 Ballymun Developments Limited and its tenants in relation to the lease of the premises at Ballymun Shopping Centre, Ballymun, Dublin 9 notified under Section 7 on 30 September 1992 (notification no. CA/1097/92E), do not offend against Section 4(1) of the Competition Act, l99l.

For the Competition Authority

Des Wall

Member

3 December 1993