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Merchant's Quay Developments Ltd/Peter Mark [1993] IECA 62 (5th October, 1993)
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[1993] IECA 62
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Merchant's Quay Developments Ltd/Peter Mark [1993] IECA 62 (5th October, 1993)
COMPETITION
AUTHORITY
Competition
Authority Decision of 5 October 1993 relating to a proceeding under Section 4
of the Competition Act, l99l.
Notification
No: CA/1018/92E - Merchant's Quay Developments Ltd/Peter Mark
Decision
No: 62
Price
£0.30
£0.70 incl. postage.
Notification
No: CA/1018/92E - Merchant's Quay Developments Ltd/Peter Mark
Decision
No: 62
Introduction
1. Notification
was made by Peter Mark 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 Merchant's Quay Developments Limited and
Peter Mark.
The
Facts
(a) Subject
of the notification
2. The
notification concerns the lease of unit F in the Merchant's Quay Shopping
Centre, Cork between Merchant's Quay Developments Limited as Landlord and Peter
Mark as tenant.
(b) The
parties involved
3. Peter
Mark is an unlimited company carrying on the business of hairdressing with
approximately 48 salons in the State. Merchant's Quay Developments Limited is
the owner and landlord of the Merchant's Quay Shopping Centre.
(c) The
notified arrangements
4. The
notified lease is in draft form and covers a term of 25 years from 1 May, 1989.
The restricted user clauses in the lease are as follows:
(a) Clause
1(7) of the lease defines the permitted business as
"The
retail trade or business of ladies and mens hairdressers and the sale of wigs,
beauty treatment, waxing and sun treatment and ancillary thereto, fashion."
(b) Under
clause 4(10)(b) the tenant covenants with the landlord:
"Not
without the prior consent in writing of the Landlord or its Agents thereunto
lawfully authorised to use or to permit or suffer or allow the Demised Premises
or any part or parts thereof to be used for any purpose other than as a retail
shop for the Permitted Business and for no other purpose or purposes whatsoever
..... provided always and it is hereby agreed and declared that upon any
application by the Tenant or any authorised under-tenant of the Tenant for
liberty to alter or change the aforesaid Permitted Business the Landlord shall
not unreasonably withhold its consent ......."
(c) Under
clause 4(24)(a) the tenant covenants with the landlord
"Not
to assign, transfer, underlet, charge, .....the possession or occupation of the
Demised Premises or any part thereof or suffer any person to occupy the Demised
Premises or any part thereof as a licensee or as concessionaire But So That
Notwithstanding the foregoing the Landlord shall not unreasonably withhold its
consent ......."
(d) Under
clause 5(5) the landlord covenants with the tenant:
".....that
the Tenant shall have the exclusive right within the Centre to use the demised
premises for male and female hairdressing and the sale of wigs which rights
shall be personal to the Tenant ..... and the Landlord further undertakes with
the Tenant to use its best endeavours not to permit any Tenant within the
centre or any Assignee of a Tenant within the centre to use any unit or part
thereof for the previously mentioned use ......."
In
addition, there are a number of other standard restrictive covenants and
obligations in the lease.
Assessment
- The Applicability of Section 4(1)
5. The
Authority considers that Peter Mark and Merchant's Quay 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 Merchant's Quay Developments Limited and Peter Mark
does not offend against
section 4(1) of the
Competition Act, l99l.
The
Certificate
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 Merchant's Quay Developments Limited
and Peter Mark in relation to the lease of the premises at Merchant's Quay
Shopping Centre, notified under
Section 7 on 30 September 1992 (notification
no. CA/1018/92E), does not offend against
Section 4(1) of the
Competition Act,
l99l.
For
the Competition Authority
Des
Wall
5
October 1993
© 1993 Irish Competition Authority