Irish Competition Authority Decisions

1. Notification was made by Irish Handcrafts Limited on 28 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 Irish Handcrafts Limited and AIB Investment Nominees Limited, Doncove Limited and Beryvale Limited.

2 The notification concerns the lease of unit No. 12 in Arthur's Quay Shopping Centre, Limerick between AIB Investment Nominees Limited, Doncove Limited and Berryvale Limited as Landlord and Irish Handcrafts Ltd as tenant.

3. Irish Handcrafts Ltd trades as a retail draper specialising in tweeds, woollens and ladies fashions at unit 12. AIB Investment Nominees Limited, Doncove Limited and Berryvale Limited are the owners and landlords of shop units at Arthur's Quay Shopping Centre.

4. The notified lease was made on 6 September, l990 for a tern of 99 years from l October, l989. The restricted user clauses in the lease are as follows:

(a) Under clause 4.21 the tenant covenants with the landlord:

"Not to assign, transfer or underlet 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 as concessionaire and in no circumstances or event to an assignee who would carry on any business of a non-retail nature including Banks and Building Societies BUT SO THAT NOTWITHSTANDING the foregoing the Landlord shall not unreasonably withhold its consent..."

(b) Under clause 4.22 the tenant covenants with the landlord

"Not without the prior consent in writing of the Landlord or its Agent thereunder lawfully authorised to use or permit or suffer or allow the Demised Premises or any part or parts thereof to be used for any purpose other than as set forth in Part II of the First Schedule hereto... Provided Always And It Is Hereby Agreed And Declared that upon any application by the Tenant or any under-Tenant of the Tenant for liberty to alter or change the aforesaid permitted user of the Demised Premises the Landlord shall not unreasonably withhold its consent..."

(c) Under clause 4.23.2 the tenant covenants with the landlord

"Not at any time to use the Demised Premises or any part thereof or allow the same to be used as a butcher shop or a greengrocers shop or as a Building Society or Bank or for the sale of food for consumption on or off the Demised Premises or for the sale of secondhand goods."

(d) In the First Schedule, Part II the Permitted User is defined as "The sale of handknits, woollen goods, high class clothing, linen goods, pottery, china and glass ware or in the alternative as a gift shop."

(e) In the Sixth Schedule the landlord covenants with the tenant

"In consideration of the Tenant entering into these presents the Landlord and the Management Company hereby covenant with the Tenant to restrict any Owner/Lessee/Occupier/Licensee of premises (other than the Demised Premises) in the Shopping Centre from engaging in the sale of Aran knit goods or machine representations thereof and to this end shall ensure that each Lease of Lettable Premises in the Shopping Centre incorporates a restrictive covenant restraining the Tenant of such premises from engaging in the sale of Aran knit goods or machine representations of same."

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

5. The Authority considers that Irish Handcrafts Limited, AIB Investment Nominees Limited, Doncove Limited, Berryvale Limited are undertakings and that the notified lease is an agreement 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 of l0 September, l993, pp.665-667). The Authority therefore considers that the notified agreement between AIB Investment Nominees Limited, Doncove Limited and Berryvale Limited and Irish Handcrafts Ltd does not offend against Section 4(1) of the Competition Act, l99l.

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 AIB Investment Nominees Limited, Doncove Limited and Berryvale Limited and Irish Handcrafts Ltd in relation to the lease of the premises at Arthur's Quay Shopping Centre, Limerick notified under Section 7 on 28 September 1992 (notification no. CA/148/92E), does not offend against Section 4(1) of the Competition Act, l99l.

For the Competition Authority

Des Wall

Member

15 December 1993