Irish Competition Authority Decisions

1. Notification was made by Omni Park Limited 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 Omni Park Limited and its tenants.

2 The notification concerns the standard lease relating to the units in the Omni Park Centre, Swords Road, Dublin 9 between Omni Park Ltd. as landlord and the tenants.

3. Omni Park Ltd is a limited liability company and it is the owner and landlord of the Omni Park Centre. The other parties are the tenants who are involved in various trading or service activities at the centre.

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

(I) Under clause 4 (12) the tenant covenants with the landlord "Not to transfer assign underlet mortgage charge hold in trust for another part with nor share possession or control or occupation of the Property or any part thereof SAVE AND EXCEPT as is permitted and subject to full compliance with the requirements set out..."

(II) Under clause 4(21) the tenant covenants with the landlord

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

(v) for the sale of food or foodstuffs

(vi) as a restaurant

(vii) without prejudice to the generality of sub-paragraph (v) and (vi) as a fried fish shop or

as a shop for the sale of hot food for consumption off the premises.

(viii) for the sale of any intoxicating liquor .......... ..........

(xii) as a department store

(xiii) as a barber's shop or hairdressing salon or beauty salon

(xv) as an opticians

(xvii) without prejudice to the foregoing so as to contravene the Supermarket User

Protection Clause the Department Store User Protection Clause or the Restaurant

User Protection

(xvi) 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 which consent shall not be unreasonably withheld

(c) Without prejudice to the generality of sub-paragraph (xv) of paragraph (a) of this sub-clause of this clause to observe the Core Restrictions as defined in the Supermarket User Protection Clause the Core Restrictions as defined in the Department Store User Protection Clause and the Core Restrictions as defined in the Restaurant User Protection Clause."

(c) The Third Schedule contains the Core Restrictions involving covenants by the Landlord not to use or permit the use in the centre by any other tenant of an area exceeding 1,500 sq feet for the sale of foodstuffs, an area exceeding 5,000 sq. feet as a department store and an area exceeding 2,000 sq. feet as a Restaurant (excluding fast food shops and a coffee shop).

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

5. Omni Park have also supplied details of the permitted user under clause 4.21 (b) applying to each of 16 leases whereby the tenant is restricted to particular specified retail or service activities. They have also supplied details of the exclusive user granted by way of side letters for a period (generally from October 1991) of five years for the 16 units which include a chemist, coffee shop, butchers, bakers, bookshop, dry cleaners, opticians, camera shop and an ATM Machine. In addition exclusivity has been granted by covenants in the leases in respect of a supermarket, department store, restaurant and medical centre.

6. The Authority considers that Omni Park Limited and its 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, l993 in respect of shopping centre leases (Iris Oifigiuil of l0 September, l993, pp. 665-667). The Authority therefore considers that the notified agreements between Omni Park Limited and its tenants 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 agreements between Omni Park Limited and its tenants in relation to the lease of the premises in the Omni Park Centre, Swords Rd, Dublin 9 notified under Section 7 on 30 September, l992 (notification No CA/1102/92), do not offend against Section 4(1) of the Competition Act, l99l.

For the Competition Authority

Des Wall

Member

3 December 1993