Irish Competition Authority Decisions

1. Notification was made by Irish Pension Fund Property Unit Trust (IPFPUT) on 16 September 1992 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 IPFPUT and tenants at Dun Laoghaire Shopping Centre.

2. The notification concerns the standard lease relating to the letting of shop units in the Dun Laoghaire Shopping Centre, Dun Laoghaire, Co. Dublin between IRFPUT/Erin Executor & Trustee Co. Limited as landlord and 119 tenants.

3. IPFPUT is a unit trust for the investment of pension and other exempt funds and through Erin Executor & Trustee Company Ltd, its trustee, is the landlord of Dun Laoghaire Shopping Centre. The tenants are engaged in various retail and service activities at the shopping centre.

4. The standard shopping centre lease notified in draft form contains the following restricted user viz.

(a) Under clause 4.26 the tenant covenants with the landlord "Not to assign, transfer, underlet .......the Demised Unit or any part thereof .......But So That Notwithstanding the foregoing the Landlord shall...not unreasonably withhold its consent..."

(b) Under clause 4.28.1 the tenant covenants with the landlord "Not without the prior consent in writing of the Landlord or its Agent thereunto lawfully authorised to use or to permit or suffer or allow the Demised Unit or any part or parts thereof to be used for any purpose other than as set forth in Part II of the First Schedule ... and for no other purpose or purposes whatsoever... Provided Always And It Is Hereby Agreed And Declared that when any application by the Tenant or any under-tenant of the Tenant for liberty to alter or change the aforesaid permitted user of the Demised Unit the Landlord shall not unreasonably withhold its consent..."

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

5. IPFPUT has furnished details of the permitted user under clause 4.28 attaching to each of 119 leased units whereby the tenant is restricted to particular specified retail or service activities.

6. The Authority considers that IPFPUT and its trustee, Erin Executor & Trustee Co. 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 IPFPUT, Erin Executor & Trustee Co. Limited and the tenants do not offend against Section 4(1) of the Competition Act, l99l.

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 Irish Pension Fund Property Unit Trust, Erin Executor & Trustee Co. Limited and the tenants in relation to the lease of premises at Dun Laoghaire Shopping Centre, Dun Laoghaire, Co. Dublin notified under Section 7 on 16 September 1992 (notification no. CA/79/92E), do not offend against Section 4(1) of the Competition Act, l99l.

For the Competition Authority

Des Wall

Member

3 December 1993