Irish Competition Authority Decisions

1. Notification was made by Glenberg 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 Glenhest Developments Limited and Glenberg.

2. The notification concerns the lease of unit No. 2 of Sutton Cross Centre, Sutton, Dublin 13 between Glenhest Developments Limited as lessor and Glenberg as lessee.

3. Glenberg, an unlimited company, is the property holding company for the Peter Mark chain of Hairdressing Salons. Glenhest Developments Limited is the owner and landlord of the Sutton Cross Centre.

4. The notified lease was made on 22 December, l986 for a period of 500 years from l May, l986. The restricted user clauses in the lease are as follows:

(a) Under clause B.13(a) the lessee covenants "Not without the prior consent in writing of the Lessor or its agent thereunto lawfully authorised to use or permit or suffer or allow the Demised Unit or any part or parts thereof to be used for any purpose other than that specified in the Fourth Schedule hereto and for no other purpose or purposes whatsoever.......Provided Always And It Is Hereby Agreed And Declared that upon any application the Lessee or any under-Lessee of the Lessee for liberty to alter or change the aforesaid permitted user of the Demised Unit, the Lessor shall not unreasonably withhold its consent..."

(b) Under Clause B 45(a) the tenant covenants "Not to assign, underlet or part with or share the possession or occupation of any part of the Demised Unit or permit any person to occupy the whole or any part thereof as a licensee or concessionaire under any circumstances whatsoever."

(c) In the Fourth Schedule to the lease the User is defined as "Ladies and Gents hairdressing and fashion salon."

(d) The Fifth Schedule to the lease contains Supplemental Covenants by the tenant as follows:

"The Lessee hereby covenants that the premises hereby demised shall not be used for the purpose of conducting the following businesses in the premises hereby demised.

1. Banking Hall or Building Society.

2. Ladies Fashion.

3. Restaurant.

4. Shoe Shop.

5. Auctioneering."

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

6. The Authority considers that Glenberg and Glenhest Developments Limited are undertakings and that the notified lease is an agreement between undertakings. The agreement has effect within the State.

7. 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 Glenberg and Glenhest Developments Limited 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 agreement between Glenhest Developments Limited and Glenberg in relation to the lease of the premises at Sutton Cross Centre, Sutton, Dublin 13 notified under Section 7 on 30 September 1992 (notification no. CA/1005/92E), does not offend against Section 4(1) of the Competition Act, l99l.

For the Competition Authority

Des Wall

Member

3 December 1993