Irish Competition Authority Decisions

1. Notification was made by Rayphael and Breid Kelly on 30 September, 1992 with a request for a certificate under Section 4(4) of the Competition Act, 1991 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 Noonan Developments Ltd and Rayphael and Breid Kelly.

2. The notification concerns the lease of Unit No. 15 in Tullamore Shopping Centre, Hophill Road, Tullamore, Co. Offaly between Noonan Developments Ltd as lessors and Rayphael and Breid Kelly as lessees.

3. Noonan Developments Ltd is engaged in the letting of shop units at Tullamore Shopping Centre. Rayphael and Breid Kelly, who now hold the lessee interest, trade as a newsagency, confectioner, tobacconist, Book shop, Stationer and Toy shop at Unit 15 in Tullamore Shopping Centre.

4. The notified lease was executed on 18 September 1989 for a period of 999 years from 1 October, 1984. The restricted user clauses in the lease are as follows:

(a) Under clause M(i) the lessee covenants with the lessor "Not to assign transfer or underlet or part with or share with ..... the possession or occupation of the demised premises or any part or parts therefor without the previous written consent of the Lessor such consent not to be unreasonably withheld ....".

(b) Under clause P(i) the lessee covenants with the lessor: "Not without the consent in writing of the Lessor which shall not be unreasonably withheld in the case of an alternative retail use, to use or permit or suffer the demised premises or any part thereof to be used for any purpose other than as a Newsagency, Confectionery and Tobacconist, Bookshop and Stationer, Toy Shop".

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

5. The Authority considers that Rayphael and Breid Kelly and Noonan Developments 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 1993 in respect of shopping centre leases (Iris Oifigiuil 10 September 1993, pp.665-667). The Authority therefore considers that the notified agreement between Noonan Developments Ltd and Rayphael and Breid Kelly 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 Noonan Developments Ltd and Rayphael and Breid Kelly in relation to the lease of the premises at Tullamore Shopping Centre, Hophill Rd, Tullamore, Co. Offaly notified under Section 7 on 30 September 1992 (notification no. CA/229/92E), does not offend against Section 4(1) of the Competition Act, l99l.

For the Competition Authority

Des Wall

Member

15 December 1993