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Cite as: [1993] IECA 185

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AIB Investment Nominees Ltd/Tenants of Nutgrove S.C. [1993] IECA 185 (3rd December, 1993)

Notification No: CA/1105/92E - AIB Investment Nominees Limited/ Tenants of Nutgrove Shopping Centre.

Decision No: 185.

Introduction

1. Notification was made by AIB Investment Nominees 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 leases between AIB Investment Nominees Limited and the tenants of Nutgrove Shopping Centre.

The Facts

(a) Subject of the notification

2. The notification concerns the leases relating to the shop units in the Nutgrove Shopping Centre, Rathfarnham, Dublin 16 between AIB Investment Nominees Limited as landlord and the tenants.

(b) The parties involved

3. AIB Investment Nominees Limited is a nominee holding company of investment assets and it is the owner and landlord of the Nutgrove Shopping Centre. The tenants are engaged in various trading and service activities at the centre.

(c) The notified arrangements

4. The notified lease is a standard lease containing the following restricted user clauses viz.

(a) Under clause 3.2(3) the tenant covenants with the landlord ".... to keep the Demised Premises for the retail use of .......

(b) Under clause 3.2(5) the tenant covenants with the landlord "Not to assign or underlet the whole of the Demised Premises except with the previous consent in writing of the landlord such consent not to be unreasonably withheld".

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

5. AIB Investment Nominees have supplied details of the permitted user under clause 3.2(3) applicable to each of 32 commercial tenants, covering 70 leased units, under which each tenant is restricted to particular specified trading or service activities. In addition they have also supplied details of the exclusive user covering electrical/TV, delicatessen, newsagency and bookshop that has been granted in respect of 7 units.

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

Assessment - The Applicability of Section 4(1)

6. The Authority considers that AIB Investment Nominees 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 1993 in respect of shopping centre leases (Iris Oifigiuil 10 September 1993, pp.665-667). The Authority therefore considers that the notified agreements between AIB Investment Nominees Limited and the tenants do not offend against section 4(1) of the Competition Act, l99l.

The Certificate

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 AIB Investment Nominees Limited and the tenants in relation to the lease of the premises at Nutgrove Shopping Centre, Rathfarnham, Dublin 16 notified under Section 7 on 30 September 1992 (notification no. CA/1105/92E), do not offend against Section 4(1) of the Competition Act, l99l.

For the Competition Authority

Des Wall

Member

3 December 1993