Irish Competition Authority Decisions

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Cite as: [1993] IECA 188

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Omni Park Ltd/Quinnsworth [1993] IECA 188 (3rd December, 1993)

Notification No. CA/603/92E - Omni Park Ltd/Quinnsworth

Decision No. 188.

Introduction

1. Notification was made by Quinnsworth 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 Omni Park Ltd and Quinnsworth.

The Facts

(a) The subject of the notification

2. The notification concerns the lease of Shop Unit 51 at the Omni Park Centre, Swords Rd., Santry, Dublin 9 between Omni Park Ltd as Landlord and Quinnsworth as tenant.

(b) The parties involved

3. Omni Park Ltd is involved in the letting of shop units at the Omni Park shopping Centre. Quinnsworth trades as a supermarket with outlets throughout the State including the outlet at the shopping centre.

(c) The notified arrangements

4. The notified shopping centre lease was executed on 22 August 1991 for a term of 1000 years from 1 October 1990. The restricted user clauses in the lease are as follows:

(I) Under Clause 4(20) the tenant covenants

"(a) Not to use the whole or any part of the Property .....................

(ix) as a barber's shop or hairdressing salon

(x) ......

(xi) subject to paragraph (b) of this sub-clause otherwise than for the Permitted Use

(b) Subject as aforesaid not to use the whole or any part of the Property for any business other than the Permitted Use without the previous consent in writing of the Landlord....."

Permitted Use is defined in clause 1(9) "As a supermarket including the sale of intoxicating liquor for consumption off the Property or a supermarket and retail discount store including the sale of intoxicating liquor for consumption off the Property."

(II) Under clause 4(12) the tenant covenants "Not to transfer assign underlet hold in trust for another part with or share possession.......of the Property or any part thereof SAVE AND EXCEPT as is permitted......in the following.........."

(III) Under clause 6(2) the Landlord covenants "In so far as the law permits.......that the Landlord and all persons deriving title......will at all times hereafter observe and perform the restrictions and stipulations following that is to say

(a) Not use or permit the use of the Bound Lands in such a way that:-

(i) a Trader is using an area in excess of the Maximum Area in a Trading Unit for the sale of foodstuffs

(ii) a Trader is using an area in excess of the Maximum Area in two or more contiguous Trading Units for the sale of foodstuffs

PROVIDED however that these restrictions shall not apply to Exempted Foodstuff Sales; and

(b) Not use any part of the Bound Lands for the sale of any intoxicating liquor for consumption off the premises PROVIDED that this restriction shall not apply to Exempted Liquor sales".

Bound lands are defined as the Centre (excluding the demised unit) and the Estate while the maximum area is defined as 1,500 sq. feet.

Exempted foodstuffs refers to cafe, restaurant, take away etc sales while exempted liquor relate to 1 public house off premises sales.

In addition there are a number of other standard restrictions and obligations in the lease.

Assessment - The applicability of Section 4 (1)

5. The Authority considers that Quinnsworth and Omni Park Ltd 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 Omni Park Ltd and Quinnsworth does not offend against Section 4 (1) of the Competition Act 1991.

The Certificate

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 Omni Park Ltd and Quinnsworth in relation to the lease of the premises at Omni Park Centre, Swords Rd., Santry, Dublin 9, notified under Section 7 on 30 September 1992 (notification no. CA/603/92E), does not offend against Section 4 (1) of the Competition Act, 1991.

For the Competition Authority.

Des Wall

Member

3 December 1993