Irish Competition Authority Decisions

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Cite as: [1993] IECA 158

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Clondalkin Properties Ltd/Thomas Farren [1993] IECA 158 (3rd December, 1993)

Notification No. CA/611/92E - Clondalkin Properties Ltd/Thomas Farren

Decision No. 158.

Introduction

1. Notification was made by Clondalkin Properties Limited 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 Clondalkin Properties Limited and Thomas Farren.

The Facts

(a) The subject of the notification

2. The notification concerns the lease of shop unit 1, Clondalkin Shopping Centre, Clondalkin, Dublin 22, between Clondalkin Properties Limited as Lessor and Thomas Farren as Lessee.

(b) The parties involved

3. Clondalkin Properties Ltd, a subsidiary of Power Supermarkets Ltd. is involved in the letting of shop units at Clondalkin Shopping Centre. Thomas Farren under the name Power Quality Cleaners trades as a dry cleaners at unit 1 Clondalkin Shopping Centre.

(c) The notified arrangements

4. The shopping centre lease notified contains the following restrictive user clauses viz.

(a) Under Clause 2(18) the tenant covenants "Not to use or permit any part of the demised premises or any part thereof to be used for any purpose other than for the business of a Dry Cleaner And the Landlord hereby undertakes that no other person or persons will be permitted to open a Dry Cleaning business within the development."

(b) Under Clause 2(20) the tenant covenants "Not to assign underlet or part with the possession.....of the demised premises or any part thereof......... PROVIDED THAT as regards the demised premises as a whole and not in respect of any less part the Tenant shall be at liberty subject to the following conditions to assign or underlet the whole of the demised premises upon obtaining the prior consent in writing of the Landlord....."

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

Assessment - The applicability of Section 4 (1)

5. The Authority considers that Clondalkin Properties Limited and Thomas Farren 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 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 Clondalkin Properties Limited and Thomas Farren does not offend against Section 4 (1) of the Competition Act 1991.

The Certificate

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 Clondalkin Properties Limited and Thomas Farren in relation to the lease of the premises at Unit 1, Clondalkin Shopping Centre, Clondalkin, Dublin 22, notified under Section 7 on 30 September 1992 (notification no.CA/611/92E), does not offend against Section 4 (1) of the Competition Act, 1991.

For the Competition Authority

Des Wall:

Member

3 December 1993