Irish Competition Authority Decisions

1. Notification was made by Superquinn on 30 September 1992 with a request for a certificate under Section 4(4) of the Competition Act, 1991, or in the event of refusal by the Competition Authority to issue a certificate, a licence under Section 4(2) in respect of leases between Superquinn and the tenants of shop units at Blackrock Shopping Centre, Blackrock, Co.Dublin

2. The notification concerns the leases of shop units at Blackrock Shopping Centre, between Superquinn as lessor and 42 separate tenants.

3. Superquinn are involved in the business of trading as a supermarket and the letting of shop units at shopping centres. The tenants are involved in various retail and service activities at the shopping centre.

4. The several leases involved were executed at various dates between 1984 and 1991. A sample lease submitted in draft form contains the following restricted user clauses viz.

(a) Under clause B.13 the lessee covenants "Not without the prior consent in writing of the Lessor.....to use or permit or suffer or allow the Demised Unit or any part or parts thereof to be used for any purpose other than that specified in the Fifth Schedule hereto and for no other purpose or purposes whatsoever............"

(b) Under clause B.42 the lessee covenants

"(a) Not to assign, underlet or part with or share the possession or occupation of any part of the Demised Unit........under any circumstances whatsoever.

(b) Not to assign, underlet or part with or share the possession of the whole of the Demised Units except to a suitable and solvent party and subject to the written consent of the Lessor.........."

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

5. Superquinn has advised that similar requirements attach to each of the tenancies with the Permitted User clause in the Fifth Schedule to each lease restricting each tenant to particular specified trading or service activities.

6. The Authority considers that Superquinn 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 their 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 19 September 1993, pp.665-667). The Authority therefore considers that the notified agreements between Superquinn and its tenants do not offend against Section 4 (1) of the Competition Act 1991.

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 Superquinn and the tenants in relation to the leases of shop units at Blackrock Shopping Centre, Blackrock, Co. Dublin notified under Section 7 on 30 September 1992 (notification no. CA/887/92E), do not offend against Section 4 (1) of the Competition Act, 1991.

For the Competition Authority

Des Wall

Member

5 October 1993.