Irish Competition Authority Decisions

1. Notification was made by Abbey Life Assurance (Ireland) 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 Holland Brooklands Ltd and Abbey Life Assurance (Ireland) Ltd.

2. The notification concerns the Head Lease for Block B in Merrion Shopping Centre, Merrion Road, Dublin 4, between Holland Brooklands Ltd as Lessor and Abbey Life Assurance (Ireland) Limited as Lessee.

3. Abbey Life Assurance (Ireland) Limited is engaged in the business of assurance and investment management and is the landlord of shop units in Merrion Shopping Centre. Holland Brooklands Limited is engaged in property development.

4. The notified shopping centre lease was executed on 10 May 1989 for a period of 9,999 years from 1 January 1989. The restricted user clauses in the lease are as follows:

(a) Under Clause 13 the lessee covenants "Throughout the said Term to use the Office block as a Shopping Mall on level one thereof and to use the remainder of the Office Block for the purposes of offices general and professional and such other purposes as the Lessor shall approve of in writing, such approval not to be unreasonably withheld PROVIDED ALWAYS that in respect of any of the shop units on the Mall the Lessee shall be entitled to use or sub-demise such portion of those units provided that the use of same shall be utilised for the purposes other than for the sale of food or food products as normally found for sale in a supermarket in Ireland for consumption off the premises, PROVIDED FURTHER that such restriction shall not apply to the sale of confectionery or ice-cream and provided that those said items are not offered for sale in any one unit or units which has a sales area greater than 900 square feet."

(b) Under Clause 29(a) the Lessee further covenants "Save as provided for in Clause (13) herein, on the sale of certain food items, the Lessee, so as to bind itself and the Owner for the time being of the Demised Lands (other than the office areas) and all and every part of it hereby covenants with the Lessor not to use or permit to be used the demised lands for the sale of food or food products."

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

5. The Authority considers that Abbey Life Assurance (Ireland) Limited and Holland Brooklands 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 1993 in respect of shopping centre leases (Iris Oifigiuil 10 September 1993, pp.665-667). The Authority therefore considers that the notified agreement between Holland Brooklands Ltd and Abbey Life Assurance (Ireland) Ltd does not offend against Section 4 (1) of the Competition Act 1991.

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 Holland Brooklands Ltd and Abbey Life Assurance (Ireland) Limited, in relation to the lease of premises at Merrion Shopping Centre, Merrion Rd, Dublin 4 notified under Section 7 on 30 September 1992 (notification no. CA/740/92E), does not offend against Section 4 (1) of the Competition Act, 1991.

For the Competition Authority.

Des Wall

Member

3 December 1993