Irish Competition Authority Decisions

1. Notification was made by New Ireland Assurance Company plc 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 standard lease between New Ireland Assurance Company plc and the tenants of units at Nutgrove Shopping Centre.

2. The notification concerns the standard lease relating to units 8-12, 15/16 and lA in the Nutgrove Shopping Centre, Rathfarnham, Dublin 14 between New Ireland Assurance Company Ltd as Landlord and the tenants of the shop units.

3. New Ireland Assurance Company plc is engaged in the business of assurance and the investment of funds and as successor in title is the landlord of shop units in Nutgrove Shopping Centre under a superior lease for 10,000 years. The tenants are engaged in various retail and service activities at the centre.

4. The standard shopping centre lease notified contains the following restricted user clauses viz.

(a) Under clause 3.2(3) the tenant covenants "Subject to Clause 3.10 hereunder to use the demised premises for the retail sale of and not without the Landlord's prior consent in writing, which consent shall not be unreasonably withheld, to use or permit or suffer the same or any part thereof to be used for any other purpose."

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

(c) Under clause 3.2(6) the tenant covenants with the landlord "...not to assign transfer or underlet or part with the possession or occupation of unit or any part thereof or suffer any person to occupy the demised premises or any part thereof as a licencee BUT SO THAT NOTWITHSTANDING the foregoing the Landlord shall not unreasonably withhold its consent to the assignment of the entire or under-letting or the entire of the demised premises ..."

(d) Under clause 3.10 the tenant covenants "...not to use or permit to be used the demised premises or any part thereof for the sale of food or food products PROVIDED HOWEVER that this covenant shall not restrict or limit the use by the tenant of a net sales floor area in the Nutgrove Shopping Centre (including the demised premises) up to 5,000 square feet ....."

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

5. The Authority considers that New Ireland Assurance Company plc and the tenants 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 standard 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 standard agreement between New Ireland Assurance Company plc and its tenants 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 standard agreement between New Ireland Assurances Company plc and its tenants in relation to the lease of premises at Nutgrove Shopping Centre, Rathfarnham, Dublin 14, notified under Section 7 on 30 September, l992 (notification no. CA/502/92E), does not offend against Section 4(1) of the Competition Act, l99l.

For the Competition Authority

Des Wall

Member

3 December 1993