Irish Competition Authority Decisions

1. Notification was made by D. Horkan 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 Melincourt Limited and D. Horkan Ltd.

2. The notification concerns the lease of unit no. 1 at Huntstown Shopping Centre, Pinewood House, Huntstown Rd, Mulhuddart, Co. Dublin between Melincourt Limited as Landlord and D. Horkan Ltd as tenant.

3. D. Horkan Limited trading as Huntsdown Newsagency is engaged in the business of Newsagent at Unit 1. Melincourt Limited is the landlord of the shopping centre.

4. The notified lease was made on 28 September, 1990 for a period of 500 years from 1 August, 1990. The restricted user clauses in the lease are as follows:

(a) Under clause 6.24.1 the tenant covenants with the landlord "Not to assign, transfer, underlet or part with possession or occupation of part only of the Demised Unit."

(b) Under clause 6.25.1 the tenant covenants with the landlord "Not without the prior consent in writing of the Landlord or its agent thereunder lawfully authorised which consent shall not be unreasonably withheld or delayed 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 hereto and for no other purpose or purposes whatsoever ...... Provided Always And It Is Hereby Agreed And Declared that upon 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......."

(c) Under clause 11 the Landlord covenants with the tenant that

"1. The Permitted User set out in Paragraph II of the First Schedule hereto is exclusive to the Tenant where so indicated and the Landlord and the Management Company hereby covenant and undertake with the Tenant to ensure that such exclusivity (where indicated) continues without interruption or interference throughout the term of this Lease.

2. The Landlord and the Management Company hereby covenant and undertake with the Tenant that they shall not cause or permit any part of the Estate to be used for any purpose which would interrupt or interfere with the Tenant's exclusivity (where appropriate) as aforesaid".

(d) In the First Schedule, Part II, of the lease the permitted user is defined as follows:

"(a) Exclusive User Newsagents, including groceries, confectionery, tobacco, toys, cards, lottery and Dublin Bus Agents.

(b) Non Exclusive User Cakes, software, books, stationery and photocopying services".

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

5. The Authority considers that D. Horkan Limited and Melincourt 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 D. Horkan Limited and Melincourt 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 D. Horkan Limited and Melincourt Limited in relation to the lease of the premises at Huntstown Shopping Centre, Huntstown Rd, Mulhuddart, Co. Dublin notified under Section 7 on 30 September 1992 (notification no. CA/817/92E), does not offend against Section 4(1) of the Competition Act, l99l.

For the Competition Authority

Des Wall

Member

3 December 1993