Irish Competition Authority Decisions

1. Notification was made by Nostex Properties 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 Nostex Properties Limited and its tenants at Bishopstown Shopping Centre.

2. The notification concerns the leases relating to 5 shop units in Bishopstown Shopping Centre, Bishopstown, Cork between Nostex Properties Limited as landlord and the tenants.

3. Nostex Properties Limited is the owner and landlord of the Bishopstown Shopping Centre. The tenants are engaged in various retail and service activities at the shopping centre.

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

(a) Under clause 4(24) the tenant covenants with the landlord "Not to assign charge underlet part with or share the possession or permit the occupation by a licensee or concessionaire or give a franchise in respect of a part only of the demised unit in any circumstances other than as hereinafter specifically permitted without the consent in writing of the Landlord such consent not to be unreasonably withheld."

(b) Under clause 4(25) the tenant covenants with the landlord "Not to assign or underlet the whole of the demised unit except with the previous consent in writing of the Landlord such consent not to be unreasonably withheld.."

(c) Under clause 4(27) the tenant covenants with the landlord "Throughout the said term to keep open and use and occupy the demised unit as specified in the Third Schedule hereto provided that with the previous written consent of the Landlord (not to be unreasonably withheld) the demised unit may be used for some other of a quiet and inoffensive character....."

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

5. Nostex Properties has furnished details of the permitted user under clause 4.27 attaching to each of the 5 leases whereby the tenant is restricted to particular specified retail or service activities.

6. The Authority considers that Nostex Properties Limited 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). The Authority therefore considers that the notified agreements between Nostex Properties Limited and its 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 Nostex Properties Limited and its tenants in relation to the lease of premises at Bishopstown Shopping Centre, Bishopstown, Cork notified under Section 7 on 30 September, l992 (notification no CA/838/92E), do not offend against Section 4(1) of the Competition Act, l99l.

For the Competition Authority

Des Wall

Member

15 December 1993