Irish Competition Authority Decisions

1. Notification was made by Peter Mark 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 Peter Mark and Dunloe House Group plc.

2. The notification concerns the lease of unit No 10 of the Merrion Shopping Centre, Merrion Rd, Dublin 4 between Dunloe House Group plc as Lessor and Peter Mark as lessee.

3. Peter Mark is an unlimited company carrying on the business of hairdressing with approximately 48 salons in the State. Dunloe House Group plc is a public limited company and is the owner and landlord of shop units at Merrion Shopping Centre.

4. The notified lease was made on 20 June, l990 for a period of 35 years from l April, l990. The restricted user clauses in the lease are as follows:

(a) Under clause 3.C(18) the lessee covenants "Throughout the said term to use the Demised Unit solely for the purposes of a ladies and gents hairstylist, beauty treatment and sale of hair and beauty products and solarium and for such other purpose as the Lessor and the Management Company shall approve of in writing subject to the other terms hereof but not further or otherwise hereinafter called "the Permitted User" PROVIDED ALWAYS that with the previous consent in writing of the Lessor and the Management Company (not to be unreasonably withheld) the Demised Unit may be used for some other retail trade or business...."

(b) Under clause 3.C(40) the lessee covenants "Not to assign, transfer, underlet, or part with the possession or occupation of the Demised Unit or any part thereof or suffer any person to occupy the Demised Unit or any part thereof as a licensee But So That Notwithstanding the foregoing the Lessor shall not unreasonably withhold its consent to an assignment of the entire Demised Unit..."

(c) In a supplemental letter to the lease dated 21 June, l990, the lessor stated "We confirm that we will not make a first letting of any of our Units other than Unit l0 in the property known as Merrion Shopping Centre permitting the user thereof as a ladies hairdressers."

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

6. The Authority considers that Peter Mark and Dunloe House Group plc are undertakings and that the notified lease is an agreement between undertakings. The agreement has effect within the State.

7. 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 Dunloe House Group plc and Peter Mark does 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 agreement between Dunloe House Group plc and Peter Mark in relation to the lease of the premises at Merrion Shopping Centre, Merrion Rd, Dublin 4 notified under Section 7 on 30 Septembher 1992 (notification no. CA/1012/92E), does not offend against Section 4(1) of the Competition Act, l99l.

For the Competition Authority

Des Wall

Member

3 December 1993