Irish Competition Authority Decisions

1. Notification was made by Glenberg 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 a lease between Winchurch Investments Limited and Glenberg.

2. The notification concerns the lease of a shop unit, Unit 5A, Finglas Main Shopping Centre, Finglas, Dublin 11 between Winchurch Investments Limited as Landlord and Glenberg as tenant.

3. Glenberg, an unlimited liability Company is the property holding company for Peter Mark which carries on the business of hairdressing at approximately 48 outlets in the State including the salon at Finglas Main Shopping Centre. Winchurch Investments Ltd is engaged in the letting of shop units at the Centre.

4. The notified shopping centre lease was executed on

19 June, l992 for a term of 999 years from l April, l992. The restricted user clauses in the lease are as follows:

(a) Under Clause C(10), the tenant covenants with the landlord

"To use the demised premises only for the carrying on of the trade, provision of the services or sale or rental of the goods set out in the Third Schedule hereto and not without the Landlord's consent in writing such consent not to be unreasonably withheld or delayed to use or permit or suffer the same or any part thereof to be used for the carrying on of any other trade, provision of any other service or the sale of any other goods or for any other purpose whatever .....

(b) Under Clause C(12)(a), the tenant covenants with the landlord "Otherwise than by way of mortgage, not to assign, sublet, part with or share possession or occupation of the demised premises or any part thereof or suffer any person to occupy or use the demised premises or any part thereof as Licensee without the consent in writing of the Landlord being first had and obtained, such consent not to be unreasonably withheld or delayed."

(c) Under Clause D(4) the landlord covenants "that the Tenant shall have the exclusive use in the Demised Premises for the user set out in this Lease and hereby further covenants with the Tenant that the Landlord shall not grant any consent permitting any Tenant within the Centre or any extension thereof to use any Unit or part of a Unit for the user set forth in this Lease and shall refuse consent to any such user or any application for assignment ...... This Clause shall not apply to Poppintree Mall, Finglas, Dublin."

(d) The Third Schedule sets out the following:-

"The use of the premises as a Ladies and Gents Hairdressing Salon, and for the provision of Beauty Treatment and the sale of Hairdressing Accessories."

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

5. The Authority considers that Winchurch Investments Limited and Glenberg 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 Winchurch Investments Limited and Glenberg 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 Winchurch Investments Limited and Glenberg in relation to the lease of the premises at Finglas Main Shopping Centre, notified under Section 7 on 30 September 1992 (notification no. CA/997/92E), does not offend against Section 4(1) of the Competition Act, l99l.

For the Competition Authority

Des Wall

Member

5 October 1993