Irish Competition Authority Decisions

1. Notification was made by AIB Investment Nominees Limited, Doncove Limited and Berryvale 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 AIB Investment Nominees Limited, Doncove Limited, Berryvale Limited and their tenants at Arthur's Quay Centre.

2. The notification concerns the leases relating to 40 shop and other units in Arthur's Quay Shopping Centre, Arthurs Quay, Limerick between AIB Investment Nominees Limited, Doncove Limited and Berryvale Limited as landlords and their tenants.

3. AIB Investment Nominees Limited, Doncove Limited and Berryvale Limited are the owners and landlords of the Arthur's Quay Shopping Centre. The tenants are engaged in various trading and professional activities at the centre.

4. The standard lease notified in draft form contains the following restricted user clauses viz.

(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 Aran knit goods or machine representations of Aran knit goods or second-hand goods."

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

5. The Landlords have supplied details of the permitted user under clause 4.22 applicable to each lease whereby the tenant is restricted to particular specified retail or service activities. They have also advised that exclusive user has been granted in respect of 4 tenancies covering a newsagents, footwear, a pharmacy, a restaurant and a bank.

6. A standard 695 year lease in respect of 4 office units was also notified, the permitted user in which was defined as "offices". The standard restrictive covenants and obligations in the lease were similar to those for the shop units with the exception of the clauses described at paras. 4(a) and (c) above, which were omitted.

7. The Authority considers that AIB Investment Nominees Limited, Doncove Limited, Berryvale Limited and the tenants are undertakings and that the notified leases are agreements between undertakings. The agreements have effect within the State.

8. The Authority considers that the notified agreements, and their restricted 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 AIB Investment Nominees Limited, Doncove Limited, Berryvale Limited and their tenants does not offend against Section 4(1) of the Competition Act, l99l.

9. 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 AIB Investment Nominees Limited, Doncove Limited, Berryvale Limited and their tenants in relation to the leases of premises at Arthur's Quay Shopping Centre, Arthur's Quay, Limerick, notified under Section 7 on 30 September 1992 (notification no. CA/222/92E), do not offend against Section 4(1) of the Competition Act, l99l.

For the Competition Authority

Des Wall

Member

15 December 1993