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Airspace Investments Ltd/The Square; Management Ltd/5 Tenants of the Square Towncentre, Tallaght [1993] IECA 210 (3rd December, 1993)
URL: http://www.bailii.org/ie/cases/IECompA/1993/210.html
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[1993] IECA 210
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Airspace Investments Ltd/The Square; Management Ltd/5 Tenants of the Square Towncentre, Tallaght [1993] IECA 210 (3rd December, 1993)
Notification
No: CA/874/92 - Airspace Investments Ltd/The Square Management Ltd/5 Tenants
of The Square, Towncentre, Tallaght.
Decision
No: 210.
Introduction
1. Notification
was made by Airspace Investments 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 leases between Airspace Investments
Ltd, and the tenants of 5 shop units.
The
Facts
(a) Subject
of the notification
2. The
notification concerns the leases relating to units 128, 209, 223, 231 and 235A
in The Square, Towncentre, Tallaght, Dublin 24 between The Square Management
Ltd, as the Freeholder, Airspace Investments Ltd as landlord, and the tenants
of the units.
(b) The
parties involved
3. The
Square Management Ltd is the freeholder (and owner) of The Square, Towncentre,
Tallaght, Dublin 24. Airspace Investments Ltd is the landlord of some units in
the shopping centre. The 5 tenants are engaged in various retail and service
activities at the centre.
(c) The
notified arrangements
4. The
standard shopping centre lease notified contains the following restricted user
clauses 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
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. Airspace
Investments have furnished details of the permitted user under clause 3.2(3)
attaching to each of the 5 leases whereby each tenant is restricted to
particular specified retail or service activities. Details of the exclusive
user attaching to each of 3 leases have also been supplied.
Assessment
- The Applicability of Section 4(1)
6. The
Authority considers that Airspace Investments Ltd, The Square Management Ltd
and their 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, 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, Airspace Investments Ltd
and the tenants do not offend against section 4(1) of the Competition Act, l99l.
The
Certificate
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, Airspace
Investments Ltd., 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/874/92), do not offend against Section
4(1) of the Competition Act, l99l.
For
the Competition Authority
Des
Wall
Member
3
December 1993
© 1993 Irish Competition Authority