Irish Competition Authority Decisions

1. Notification was made by National Trust and Investment Company Limited on 30 September, 1992 with a request for a certificate under Section 4(4) of the Competition Act, 1991 in respect of a standard lease between National Trust and Investment Company Limited and the tenants at Clondalkin Town Centre.

2. The notification concerns a standard lease relating to the shop units in Clondalkin Town Centre, Clondalkin, Dublin 22 between National Trust and Investment Company Limited as landlord and its tenants.

3. National Trust and Investment Company Limited is the owner and landlord of the Clondalkin Town Centre. The tenants are engaged in various trading and service activities at the centre.

4. The standard shopping centre lease notified which relates to Unit 1 contains the following restricted user clauses viz.

(a) Under clause B(23) the tenant covenants with the landlord

"NOT TO ASSIGN OR UNDERLET PART . Not to assign, charge or underlet a part only of the demised unit in any circumstances and not to part with or share possession of either the whole or part of the demised unit except on such assignment or underletting of the whole as hereafter authorised."

While under clause B(24) the tenant covenants

"NOT TO ASSIGN THE WHOLE WITHOUT CONSENT . Not to assign or underlet the whole of the demised unit except with the previous consent in writing of the Landlord, such consent not to be unreasonably withheld or delayed ....."

(b) Under clause F(26) the tenant covenants with the landlord "Throughout the said term to keep open and use and occupy the demised unit for the purpose of a Building Society .............and business immediately connected therewith and immediately incidental thereto provided that with the previous consent of the Landlord (not to be unreasonably withheld) the demised unit may be used for some other retail trade or business ...... BUT IT IS HEREBY DECLARED that the Landlord shall be entitled at its absolute discretion to withold any such consent required as aforesaid if the Landlord considers that (a) the alternative user will compete excessively with any trade or business being carried on ......... in any other portion of the Clondalkin Town Centre or upon any adjoining property of the Landlord.........."

(c) Under clause 64(5) the landlord covenants

"Not during the continuance of this demise to use the Clondalkin Town Centre or any part thereof or permit or suffer the same (other than the demised unit) to be used for the purpose of a Building Society or similar purpose."

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

5. The Authority considers that National Trust and Investment Company Limited and the tenants 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 of 10 September, 1993, pp.665-667). The Authority therefore considers that the notified standard agreement between National Trust and Investment Company Limited and its tenants 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 standard agreement between National Trust and Investment Company Limited and its tenants in relation to the lease of premises at Clondalkin Town Centre, Clondalkin, Dublin 22 notified under Section 7 on 30 September 1992 (notification no. CA/230/92E), does not offend against Section 4(1) of the Competition Act, l99l.

For the Competition Authority

Des Wall

Member

3 December 1993