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 Wilton Securities Limited and Glenberg.

2. The notification concerns the lease of unit No 8 at the Wilton Shopping Centre, Wilton, Cork between Wilton Securities Limited as landlord and Glenberg as tenant.

3. Glenberg is the property holding company for its subsidiary Peter Mark which trades as a hairdresser with approximately 48 outlets in the State including the salon at Wilton Shopping Centre. Wilton Securities Limited is the owner and landlord of the Wilton Shopping Centre.

4. The notified lease was made on 2 September, l980 for a period of 35 years from l October, l979. The restricted user clauses in the lease are as follows:

(a) Under clause 3.26 the tenant covenants with the landlord

"Not to assign, transfer or underlet or part with the possession or occupation of the Demised Unit or any part thereof or suffer any person to occupy the Demised Unit or any part thereof as a licensee or as concessionaire and in no circumstances or event to an assignee who would carry on any business of a non-retail nature But So That Notwithstanding the foregoing the Landlord shall ....not unreasonably withhold its consent..."

(b) Under clause 3.28.1 the tenant covenants with the landlord

"Not without the prior consent in writing of the Landlord or its Agent thereunto lawfully authorised 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 as set forth in Part II of the First Schedule hereto and for no other purpose or purposes whatsoever..... provided always .....the Landlord shall not unreasonably withhold its consent but in considering the matter full account shall be taken...that the nature of the businesses carried on in the Centre as a whole should be .....as diverse as possible and that with this end in view a covenant ...will be inserted in all leases of Units in the Centre....."

(c) In Part II of the First Schedule the Permitted User is defined as

"To carry on the business of men's and ladies hairdressers, and for the sale of ladies and gents wigs."

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

5. The Authority considers that Glenberg and Wilton Securities 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 Wilton Securities 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 Wilton Securities Limited and Glenberg in relation to the lease of the premises at Wilton Shopping Centre, notified under Section 7 on 30 September 1992 (notification no. CA/1002/92E), does not offend against Section 4(1) of the Competition Act, l99l.

For the Competition Authority

Des Wall

Member

5 October 1993