Irish Competition Authority Decisions

1. Notification was made by Guardian Assurance plc 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 leases between The Square Management Ltd, L&C Properties Ltd, Guardian Assurance plc and the tenants of units at the Square Towncentre.

2. The notification concerns the leases relating to units 131, 131A, 263 and S2/4, 303A and 303B in The Square Towncentre, Tallaght, Dublin 24 between The Square Management Ltd, as Freeholder, L&C Properties Ltd, as landlord, Guardian Assurance plc which holds the lessee interest in the Head lease and the tenants.

3. The Square Management Ltd is the Freeholder (and owner) of The Square Towncentre, Tallaght, Dublin 24. Guardian Assurance plc is engaged in the business of assurance and the investment of funds. L&C Properties Ltd is landlord of units at the centre. The tenants are engaged in various retail and service activities at the shopping centre.

4. 6 shopping centre leases were notified including the standard lease in draft form. The restricted user clauses in this lease are as follows viz.

(a) Under clause 3.2(3) the tenant covenants with the landlord and the freeholder "Not, without the prior consent in writing of the Landlord and the Freeholder or their respective Agents thereunto lawfully authorised, to use or permit or suffer to allow the Demised Premises or any part thereof, to be used for any purpose other than for PROVIDED ALWAYS AND IT IS HEREBY AGREED AND DECLARED that upon any application by the Tenant, or any Undertenant of the Tenant, for liberty to alter or change the aforesaid permitted use of the Demised Premises the Landlord and the Freeholder shall not unreasonably withhold their consent..."

(b) Under clause 3.2(5) the tenant covenants with the landlord and the freeholder "Not to assign, transfer, underlet, mortgage, charge or part with the possession or occupation of the Demised Premises or any part thereof or suffer any person to occupy the Demised Premises or any part thereof as a licensee or concessionaire except with the previous consent in writing of the Landlord and the Freeholder BUT SO THAT NOTWITHSTANDING the foregoing the Landlord and the Freeholder shall not unreasonably withhold its consent..."

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

5. The 5 other leases furnished contain similar provisions including the permitted user attaching to each lease whereby the tenant is restricted to particular specified retail or service activities.

6. The Authority considers that The Square Management Ltd, L&C Properties Ltd, Guardian Assurance plc and the 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). In fact, in this case, the arrangements provide for the location of competing outlets in the Centre so no question of a restriction on competition arises. The Authority therefore considers that the notified agreements between The Square Management Ltd, L&C Properties Ltd, Guardian Assurance plc and the tenants do 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 The Square Management Ltd, L&C Properties Ltd, Guardian Assurance plc and their tenants in relation to the lease of premises at The Square Towncentre, Tallaght, Dublin 24, notified under Section 7 on 30 September, l992 (notification no. CA/532/92), do not offend against Section 4(1) of the Competition Act, l99l.

For the Competition Authority

Des Wall

Member

3 December 1993