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Cite as: [1993] IECA 260

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Oakville Ltd/Tenants of Oakville S. Centre, Clonmel [1993] IECA 260 (15th December, 1993)

Notification No: CA/840/92E - Oakville Limited/Tenants of Oakville Shopping Centre, Clonmel

Decision No: 260

Introduction

1. Notification was made by Oakville 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 Oakville Limited and the tenants at Oakville Shopping Centre, Clonmel.

The Facts

(a) Subject of the notification

2. The notification concerns the leases relating to 9 shop units in Oakville Shopping Centre, Upper Gladstone Street, Clonmel, Co. Tipperary between Oakville Limited as landlord and the tenants.

(b) The parties involved

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

(c) The notified arrangements

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

(a) Under clause 4(24) the tenant covenants with the landlord "Not to assign, charge or underlet a part only of the demised unit in any circumstances and not to part with or share possession of either the whole or part of the demised unit except on such assignment or underletting of the whole as hereafter authorised."

(b) Under clause 4(25) the tenant covenants with the landlord "Not to assign or underlet the whole of the demised unit except with the previous consent in writing of the Landlord..."

(c) Under clause 4 (27) the tenant covenants with the landlord "Throughout the said term to keep open and use and occupy the demised unit as a provided that with the previous consent of the Landlord (not to be unreasonably withheld) the demised unit may be used for some other retail trade or business...."

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

5. Oakville Ltd has furnished details of the permitted user attaching to each lease whereby the tenant is restricted to particular specified retail or service activities.

Assessment - The Applicability of Section 4(1)

6. The Authority considers that Oakville Limited and the tenants 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, 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 Oakville Limited and its tenants 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 Oakville Limited and its tenants in relation the lease of premises at Oakville Shopping Centre, Upper Gladstone St, Clonmel, Co. Tipperary notified under Section 7 on 30 September, l992 (Notification No. CA/840/92E), do not offend against Section 4(1) of the Competition Act, l99l.

For the Competition Authority

Des Wall

Member

15 December 1993