Irish Competition Authority Decisions

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Cite as: [1993] IECA 241

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N.J. Kelly Ltd/Christopher & Anne Lonergan [1993] IECA 241 (15th December, 1993)

Notification No: CA/216/92E - N.J. Kelly Ltd/Christopher and Anne Lonergan.

Decision No: 241

Introduction

1. Notification was by Christopher and Anne Lonergan (the Lonergans) on 29 September 1992 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 N.J.Kelly Ltd and Christopher and Anne Lonergan.

The Facts

(a) The Subject of the notification

2. The notification concerns the lease of shop unit 5 in the shopping centre at Togher Road, Monasterevin, County Kildare between N.J. Kelly Ltd. as landlord and the Lonergans as tenant.

(b) The parties involved

3. N.J. Kelly Ltd. is the landlord of the shopping centre at Togher Road. The Lonergans trade as drapers at unit 5.

(c) The notified arrangements

4. The notified shopping centre lease was executed on 9 December l986 for a term of l,000 years from l January, l986. The restricted user clauses in the lease are as follows:-

(a) Under clause 2.9 the tenant covenants with the landlord "Not to use or permit the demised premises or any part thereof to be used for any purpose other than in connection with business as General Drapery or defined in the Fifth Schedule hereto or any branch of such trade or business."

(b) Under clause 3.3 the landlord covenants "Not to suffer or allow to be carried on the business of General Drapery as defined in the Fifth Schedule hereto or any breach of such trade or business save where such business can be reasonably included in and form part of the General Supermarket business."

(c) The Fifth Schedule of the agreement reads "General Drapery shall include and be deemed to include menswear, ladies wear, children's wear, light household goods, bedding, towels, face cloths, dish cloths, shoes and socks."

Assessment - The Applicability of Section 4(1)

5. The Authority considers that N.J. Kelly Ltd and the Lonergans are undertakings and that the notified lease is an agrement 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 l0 September l993, pp. 665-667). The Authority therefore considers that the notified agreement between N.J. Kelly Limited and the Lonergans 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 Christopher and Anne Lonergan and N.J. Kelly Limited in relation to the lease of the premises at The Shopping Centre, Togher Road, Monasterevin, County Kildare notified under Section 7, on 29 September l992 (notification no. CA/216/92E), does not offend against Section 4 (1) of the Competition Act, l99l.

For the Competition Authority

Des Wall

Member

15 December 1993