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McGee Land Trust Ltd/ Vincent Walsh [1993] IECA 69 (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/272/92E - McGee Land Trust Ltd/Vincent Walsh.

Decision No: 69

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Notification No. CA/272/92E - McGee Land Trust Ltd/Vincent Walsh

Decision No. 69

Introduction

1. Notification was made by Vincent Walsh 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 Authority to issue a certificate, a licence under Section 4(2), in respect of a lease between McGee Land Trust Limited and Vincent Walsh.

The Facts

(a) The subject of the notification

2. The notification concerns the lease of a shop unit, Unit 2 at Celbridge Shopping Centre, Maynooth Rd, Celbridge, Co Kildare, between McGee Land Trust Limited as Lessor and Vincent Walsh as Lessee.

(b) The parties involved

3. McGee Land Trust Limited is engaged in the letting of shop units at Celbridge Shopping Centre. Vincent Walsh trades as a retail Pharmacy at unit 2 of the Shopping Centre.

(c) The notified arrangements

4. The notified shopping centre lease was made on 16 November 1982 for a period of 900 years from 1 November 1982. The restricted user clauses in the lease are as follows:

(a) Under Clause 3.23 the tenant covenants with the landlord

"Not to assign or underlet or part with the possession or occupation of the demised unit or any part thereof without prior written notice to the Lessor, which consent shall not be unreasonably withheld."

(b) Under Clause 3.24 the lessee covenants with the lessor

"To use the demised unit for the purposes specified in Part III of the First Schedule hereto and for no other purposes whatsoever."

Part III of the First Schedule reads:

"User: A Chemist Shop, Retail Pharmacy and all allied or related trades."

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

Assessment - The applicability of Section 4 (1)

5. The Authority considers that Vincent Walsh and McGee Land Trust 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 McGee Land Trust Limited and Vincent Walsh, does not offend against Section 4 (1) of the Competition Act 1991.

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 McGee Land Trust Limited and Vincent Walsh, in relation to the lease of the premises at Celbridge Shopping Centre, Maynooth Rd, Celbridge, Co Kildare, notified under Section 7 on 30 September 1992 (notification no. CA/272/92E), does not offend against Section 4 (1) of the Competition Act, 1991.

For the Competition Authority.

Des Wall

Member

5 October 1993