Irish Competition Authority Decisions

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Cite as: [1993] IECA 194

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Laurence & Catherine Power/Patrick & Margaret Byrne [1993] IECA 194 (3rd December, 1993)

Notification No CA/273/92E - Laurence and Catherine Power/ Patrick and Margaret Byrne.

Decision No: 194.

Introduction

1. Notification was made by Patrick and Margaret Byrne 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 lease between Laurence and Catherine Power and Patrick and Margaret Byrne.

The Facts

(a) Subject of the notification

2. The notification concerns the lease of unit No. 1 in Rathcoole Shopping Mall, Rathcoole, Co. Dublin between Laurence and Catherine Power as Grantor/Landlord and Patrick and Margaret Byrne as Grantee/Tenant.

(b) The parties involved

3. Laurence and Catherine Power are the owners and landlords of the Rathcoole Shopping Mall. Patrick and Margaret Byrne are the proprietors of a newsagency and tobacconist shop.

(c) The notified arrangements

4. The notified contract of tenancy was made on 26 August, l99l. The restricted user clauses in the contract are as follows:

(a) Under clause ll the grantee/tenant covenants "Not to use exercise or carry on or permit to be used exercised or carried on on any part of the premises any trade or business whatsoever other than that of Newsagent Sweetshop including stationery Toyshop and Tobacconist, Lottery and Ticket Agent but subject always to and within the limits of the other provisions of this Deed."

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

Assessment - The Applicability of Section 4(1)

5. The Authority considers that Laurence and Catherine Power and Patrick and Margaret Byrne 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, l993 in respect of shopping centre leases (Iris Oifigiuil of l0 September, l993, pp.665-667). The Authority therefore considers that the notified agreement between Laurence and Catherine Power and Patrick and Margaret Byrne does 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 agreement between Laurence and Catherine Power and Patrick and Margaret Byrne in relation to the lease of the premises at Rathcoole Shopping Mall, Rathcoole, Co. Dublin, notified under Section 7 on 30 September, l992 (notification No. CA/273/92E), does not offend against Section 4(1) of the Competition Act, l99l.

For the Competition Authority

Des Wall

Member

3 December 1993