Irish Competition Authority Decisions

1. Notification was made by Mary, Thomas and P.J. Mc Grath (the Mc Graths) 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 the standard lease between the Mc Graths and the tenants of units 6A to 9 at Finglas Shopping Centre, Finglas, Dublin 11.

2. The notification concerns the leases of shop units Nos. 6A to 9 at Finglas Shopping Centre, between the Mc Graths as lessor and the 6 tenants of the units.

3. The Mc Graths are involved in the business of letting shop units at Finglas Shopping centre. The tenants are involved in various trading activities at the Centre.

4. The sample shopping centre lease notified related to Unit 8 and was executed on 30 June 1989 for a period of 35 years from 1 July 1989 between Mallgate Ltd as the lessor and Dunlavin Bacon Company Ltd as lessee. The restricted user clauses in this lease are as follows:-

(a) Under clause B.12(a) the tenant covenants "....not to use or permit the premises hereby demised to be used for any purpose other than as a Butchers shop for the sale of beef, lamb, bacon, pork, poultry, eggs, frozen meats and fish."

(b) Under clause B.30 the tenant covenants

"(a) Not to assign, underlet or part with or share the possession of any part of the demised premises.

(b) Not, without the consent of the Lessor,to assign, underlet or part with or share the possession of the whole of the demised premises except to a suitable and solvent Lessee .....

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

5. The applicants have indicated that a lease on similar terms applies to each tenant with the user clause 12(a) restricting each tenant to particular specified trading activities.

6. The Authority considers that the Mc Graths 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 sample 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 agreements between the Mc Graths and their 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 Mary, Thomas and P.J. McGrath and the tenants in relation to the lease of shop units at the Finglas Shopping Centre, Finglas, Dublin 13 notified under Section 7 on 30 September 1992 (notification no. CA/1078/92E), do not offend against Section 4 (1) of the Competition Act, 1991.

For the Competition Authority

Des Wall

Member

5 October 1993