Irish Competition Authority Decisions

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 Denis Farrell and Peter Mark.

2. The notification concerns the lease of unit no. 4 Market Yard, St. Kieran's Street, Kilkenny between Denis Farrell as lessor and Peter Mark as lessee.

3. Peter Mark is an unlimited company carrying on the business of hairdressing at approximately 48 outlets in the State including the Market Yard salon. Denis Farrell is the owner and landlord of shop units at Market Yard.

4. The notified lease was made on 1 September, 1986 for a period of 35 years. The restricted user clauses in the lease are as follows:

(a) Clause 3.20 recites "The entire dwelling is developed as a single unit and Lessor will not make any lettings or sale of any unit for a business or purpose which would be in competition with the business carried on in any other unit and for this purpose the lessee shall have the exclusive use of the demised premises for the purposes of a ladies and gents hairdressers/hairdressing salon and the retail sale of allied products only. The lessee shall be permitted to use the demised premises for the sale of fashion products and for no other purposes save with the lessor's written consent which consent shall not be unreasonably refused....."

(b) Under clause 3.22 the tenant covenants with the landlord "Not to assign transfer or underlet or part with the possession or occupation of the demised premises or any part thereof as a licensee but so that notwithstanding the foregoing the lessor shall not unreasonably withhold its consent...."

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

5. The Authority considers that Peter Mark and Denis Farrell 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 Denis Farrell and Peter Mark 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 Denis Farrell and Peter Mark in relation to the lease of the premises at Market Yard, St. Kieran's Street, Kilkenny, notified under Section 7 on 30 September 1992 (notification no. CA/1020/92E), does not offend against Section 4(1) of the Competition Act, l99l.

For the Competition Authority

Des Wall

Member

5 October 1993