Irish Competition Authority Decisions

1. Notification was made by Patrick Sweeney on 30 September 1992 with a request for a licence under Section 4(2) of the Competition Act 1991 in respect of a lease between Paul and Karl Dunleavy and Patrick Sweeney.

2. The notification concerns the lease of shop unit No. 1 at Supervalu Shopping Centre, Carnmore Rd., Dungloe, Co. Donegal between Paul and Karl Dunleavy as landlord and Patrick Sweeney as tenant.

3. Paul and Karl Dunleavy are engaged in the letting of shop units at the Supervalu Shopping Centre. Patrick Sweeney, trading as Sweeney's Newsagents, trades as a newsagent at the shopping centre.

4. The notified shopping centre lease was executed in 1991 for a term of 9 years from 1 January 1991. The restricted user clauses in the lease are as follows:

(a) Under clause 23 the tenant covenants

"....to use and occupy the demised unit only for the carrying on of the trade, profession business or service set out in the Fourth Schedule hereto provided that with the previous written consent of the Landlord (not to be unreasonably withheld) the demised unit may be used for some other trade or business profession or service of a quiet inoffensive character...BUT IT IS HEREBY DECLARED that the Landlord will be entitled to withhold any such consent...if the Landlord considers that (a) the alternative user will compete to a substantial extent with any trade, profession business or service being carried on upon any other portion of the Shopping Centre..... The user set out in the Fourth schedule reads "retail newsagency".

(b) Under clause 21 the tenant covenants

"not to assign, charge, sublet part with or share possession or occupation ........ of the demised unit or any part thereof as Licensee......without the consent in writing of the Landlord....

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

5. The Authority considers that Paul and Karl Dunleavy and Patrick Sweeney 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 clause 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 Paul and Karl Dunleavy and Patrick Sweeney does not offend against Section 4 (1) of the Competition Act 1991.

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 Paul and Karl Dunleavy and Patrick Sweeney in relation to the lease of the premises at Unit 1 Supervalu Shopping Centre, Dungloe, Co. Donegal notified under Section 7 on 30 September 1992 (notification no. CA/1110/92E), does not offend against Section 4 (1) of the Competition Act, 1991.

For the Competition Authority

Des Wall

Member

5 October 1993