Irish Competition Authority Decisions

1. Notification was made by Richard J. O'Rourke 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 N.J.Kelly Ltd and Richard J. O'Rourke.

2. The notification concerns the lease of shop premises at the shopping centre at Main St., Monasterevin, Co. Kildare between N.J. Kelly Ltd. as lessor and Richard J.O'Rourke as lessee.

3. N.J. Kelly Ltd. is the landlord and owner of a shopping centre at Main St., Monasterevin, Co. Kildare. Richard J.O'Rourke is engaged in the business of a retail pharmacy at Main St. Monasterevin.

4. The notified lease was made on l December, l988 for a term of l,000 years from 30 September, l988. The restricted user clauses in the lease are as follows:

(a) Under clause 2 (9) the tenant covenants with the landlord:

"Not to use or permit the demised premises or any part thereof to be used for any purpose other than in connection with business as Chemist as more fully defined in paragraph 4 of the Second Schedule hereto or any Branch of such Trade or Business."

(b) Under clause 3 (4) the landlord covenants with the tenant:

"Not to suffer or allow to be carried on the business of Chemist or any branch of such trade or business as more particularly described at Paragraph 4 of the Second Schedule hereto."

(c) In the Second Schedule at paragraph 4 the permitted business is defined as follows:

"Full right and liberty to carry on or to permit or suffer to be carried on in or upon the Premises situate and lying on the demised premises, the Trade or business of Chemist including the exclusive right within the Shopping Centre to the following:

(a) Photographic Films/Film Processing Cameras;

(b) Cosmetics, Lipstick, Nail Polish, Make Up and Perfume;

(c) Jewellery, Silver 9 ct. Gold and Custom Jewellery;

(d) Watches;

(e) Vitamin Tablets;

(f) Veterinary Medicines."

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

5. The Authority considers that Richard J. O'Rourke and N.J. Kelly 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 N.J. Kelly Ltd. and Richard J.O'Rourke 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 N.J. Kelly Limited and Richard J O'Rourke in relation to the lease of the premises at Main St., Monasterevin, Co. Kildare notified under Section 7 on 30 September 1992 (notification no. CA/236/92E), does not offend against Section 4(1) of the Competition Act, l99l.

For the Competition Authority

Des Wall

Member

5 October 1993