Irish Competition Authority Decisions

1. Notification was made by Power Supermarkets 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 lease between Mayfield Investments Limited and Power Supermarkets Ltd.

2. The notification concerns the lease of the Supermarket Unit in Kilbarrack Shopping Centre, Swans Nest Rd, Kilbarrack, Dublin 13 between Mayfield Investments Ltd as Lessor and Power Supermarkets Ltd as lessee.

3. Power Supermarkets Limited trades as a supermarket with outlets throughout the State. Mayfield Investments Limited is the landlord and owner of the Kilbarrack Shopping Centre.

4. The notified lease was made on l February, l982 for a period of 999 years from 20 September, l97l. The restricted user clauses in the lease are as follows:

(a) Under clause l0 the lessee covenants with the Lessor "To use the demised premises for the purposes of a Supermarket and/or Department Shop or Store and/or a Retail Shop or Store, including trading by way of licensing/franchising and also for the sale of intoxicating liquor for consumption off the demised premises and not without the Lessor's consent in writing (which shall not be unreasonably withheld) to use permit or suffer the same or any part thereof to be used for any other purposes."

(b) Under clause l2 the lessee covenants with the Lessor "Not to part with or share possession of any part of the demised premises without the consent in writing of the Lessor (such consent not to be unreasonably withheld) save that such prohibition shall not apply to any subsidiary or associated company of the Lessee or to any short term licence or concession which does not create a relationship of landlord and tenant."

(c) Under clause 4 of the Lessor's Covenants, the lessor covenants "Not to operate any Supermarket nor suffer or permit any other Supermarket to operate or carry on business at the Kilbarrack Shopping Centre or any extension or addition thereto and not to sell nor suffer or permit the sale of foodstuffs in any other Unit including any extension thereof with the exception of the Unit leased to James Madigan & Sons Limited for so long as the said Unit is used as a Public House and Lounge and Restaurant exceeding 2000 square feet in the Kilbarrack, Shopping Centre or any extension or addition thereto or in or over an area exceeding 2000 square feet in any one Unit in the Kilbarrack Shopping Centre or any extension or addition thereto."

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

5. The Authority considers that Power Supermarkets Limited and Mayfield Investments Limited 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, l993 in respect of shopping centre leases (Iris Oifigiuil of l0 September, l993, pp.665-667). The Authority therefore considers that the notified agreement between Mayfield Investments Limited and Power Supermarkets Limited 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 agreement between Mayfield Investments Limited and Power Supermarkets Ltd in relation to the lease of the premises at Kilbarack Shopping Centre, Swans Nest Rd, Kilbarrack, Dublin 13 notified under Section 7 on 30 September 1992 (notification no. CA/593/92E), does not offend against Section 4(1) of the Competition Act, l99l.

For the Competition Authority

Des Wall

Member

3 December 1993