Irish Competition Authority Decisions

1. Notification was made by Town and County Investments plc 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 Town and County Investments plc and Coffee Garden Ltd.

2. The notification concerns a sublease relating to Unit 5 at Navan Shopping Centre, Navan, Co. Meath between Town and County Investments plc as landlord and Coffee Garden Ltd. as tenant.

3. Town and County Investments is a public limited company involved in property investment and development. Coffee Garden Ltd trades at Navan Shopping Centre as a restaurant/coffee bar.

4. The notified shopping centre sub-lease was executed on 27 March 1990 for a term of 35 years from 1 March 1990. The restricted user clauses in the lease are as follows:-

(a) Under clause 4.13 (a) the Tenant covenants

"Not to use the whole or any part of the Demised premises

............

(ix) As a barber's shop or hairdressing salon

(x) ............

(xi) ...otherwise than for the Permitted use PROVIDED ALWAYS that notwithstanding anything herein contained the Tenant shall not be bound to ensure that food or drinks sold on the Demised premises shall be consumed on the Demised premises

(b) Under clause 4.13(b) the tenant covenants

"Subject as aforesaid not to use the whole or any part of the Demised premises for any business other than the Permitted Use without the previous consent in writing of the Head Landlord and the Landlord which consents shall not be unreasonably withheld."

Permitted Use is defined in clause 1(16) as ..

"use as or for the purposes of a coffee shop and premises for the sale of fast food and drinks including the sale of fast food and drinks in disposable containers but not the sale of "takeaway food" or food for the consumption off the premises."

(b) Under clause 4.(15) the tenant covenants

"Not to transfer assign underlet ......... part with nor share possession or control of the Demised Premises or any part thereof SAVE AND EXCEPT as is permitted ........(a) The Tenant may transfer assign ....the whole (but not part only) of the Demised Premises with the previous consents in writing of the Head Landlord under the Head Lease and of the Landlord which consents shall not be unreasonably witheld."

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

5. The Authority considers that Town and County Investments plc and Coffee Garden Ltd 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, do 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 Town and County Investments plc and Coffee Garden Ltd 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 Town and County Investments plc and Coffee Garden Ltd in relation to the lease of Unit 5 at Navan Shopping Centre, Navan, Co. Meath notified under Section 7 on 30 September 1992 (notification no. CA/257/92E), does not offend against Section 4 (1) of the Competition Act, 1991.

For the Competition Authority

Des Wall

Member

5 October 1993