Irish Competition Authority Decisions

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Cite as: [1993] IECA 193

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Interfit Ltd/ The Tenants of Portmarnock S.C [1993] IECA 193 (3rd December, 1993)

Notification No CA/846/92E -Interfit Limited/The tenants of Portmarnock Shopping Centre

Decision No 193.

Introduction

1. Notification was made by Interfit 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 Authority to issue a certificate, a licence under Section 4(2) in respect of a lease between Interfit Limited and the tenants of units 3, 4 and 5 of Portmarnock Shopping Centre.

The Facts

(a) The subject of the notification

2. The notification concerns the lease of three of the shop units (units 3, 4 and 5) in Portmarnock Shopping Centre, Carrickhill, Portmarnock, Co.Dublin between Interfit Limited as landlord and the tenants of the units concerned.

(b) The parties concerned

3. Interfit Limited is the landlord and owner of shop units at Portmarnock Shopping Centre. The tenants are engaged in various trading activities at the centre.

(c) The notified arrangements

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

(i) Under clause 4(20) the tenant covenants "Not to use or occupy the demised premises or any part thereof .......... for any purpose other than the nor in any manner inconsistent with such user or occupation......"

(ii) Under clause 17 the tenant covenants

(a) "Not to assign underlet or part with the possession or control or occupation ....of part only of the demised premises.

(b) Not to assign underlet or part with the possession or control or occupation ..... of the whole of the demised premises without the consent in writing of the Landlord first obtained which consent shall not be unreasonably witheld......"

There are also a number of other standard restrictive covenants and obligations in the lease.

Assessment - The Applicability of Section 4(1)

5. The Authority considers that Interfit Limited and the tenants of units 3, 4 and 5 at Portmarnock Shopping Centre are undertakings and that the notified leases are agreements between undertakings. The agreements have effect within the State.

6. 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 n respect of shopping centre leases (Iris Oifigiuil 10 September 1993). The Authority therefore considers that the notified agreements between Interfit Limited and the tenants of Units 3, 4 and 5 of Portmarnock Shopping Centre, do not offend against Section 4(1) of the Competition Act, l99l.

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 agreements between Interfit Limited and its tenants at Portmarnock Shopping Centre, Carrickhill, Portmarnock, Co. Dublin in relation to the lease of the premises at Portmarnock Shopping Centre, notified under Section 7 on 30 September 1992 (notification no. CA/846/92E), do not offend against Section 4(1) of the Competition Act.

For the Competition Authority

Des Wall

Member

3 December 1993