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Cite as: [1993] IECA 242

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Naas Mall Ltd/Tenants of the Caspo S.C., Naas [1993] IECA 242 (15th December, 1993)

Notification No: CA/924/92E -Naas Mall Ltd/Tenants of the Caspo Shopping Centre, Naas

Decision No: 242

Introduction

1. Notification was made by Naas Mall 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 a lease between Naas Mall Limited and the tenants of the Caspo Shopping Centre.

The Facts

(a) The subject of the notification

2. The notification concerns the lease of shop units in the Caspo Shopping Centre (otherwise described as Naas Mall), Naas, Co. Kildare between Naas Mall Limited as landlord and 7 tenants of the shopping centre.

(b) The parties involved

3. Naas Mall Limited is the owner and landlord of Caspo Shopping Centre. The tenants are engaged in various retail and service activities at the centre.

(c) The notified agreements

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

(a) Under clause 3.2(3) the tenant covenants " To keep the demised premises for the purpose of the PROVIDED ALWAYS that the premises or part thereof shall not be used for the sale, vending, consumption or otherwise of any type of foodstuffs on the said premises for human or animal consumption only and not without the landlord's prior consent in writing, which shall not be unreasonably witheld to use or permit or suffer the same or any part thereof to be used for any other purpose."

(b) Under clause 3.2(7) the tenant covenants "Not to assign transfer or underlet or part with the possession or occupation of the demised premises or any part thereof ....... BUT SO THAT NOTWITHSTANDING the foregoing the Landlord shall not unreasonably withold its consent to an assignment of the entire ........"

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

5. Naas Mall Ltd has supplied details of the permitted user under clause 3.2(3) attaching to each lease whereby the tenant is restricted to particular specified trading or service activities.

Assessment - The Applicability of Section 4(1)

6. The Authority considers that Naas Mall Limited and the tenants of the Caspo Shopping Centre 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 1993 in respect of shopping centre leases (Iris Oifigiuil 10 September 1993, pp.665-667). The Authority therefore considers that the notified agreements between Naas Mall Limited and the tenants of the Caspo Shopping Centre 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 Naas Mall Limited and the tenants of the Caspo Shopping Centre in relation to the lease of premises in the Caspo Centre, Naas Co. Kildare, notified under Section 7 on 30 September 1992 (notification no. CA/924/92E), do not offend against Section 4(1) of the Competition Act, l99l.

For the Competition Authority

Des Wall

Member

15 December 1993