Irish Competition Authority Decisions

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Five Star Supermarket/Margaret Conway [1993] IECA 81 (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/1113/92E - Five Star Supermarket/Margaret Conway.

Decision No: 81

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Notification No. CA/1113/92E - Five Star Supermarket/Margaret Conway

Decision No. 81

Introduction

1. Notification was made by Margaret Conway 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 Five Star Supermarket and Margaret Conway.

The Facts

(a) The subject of the notification

2. The notifications concern the lease of Shop Unit No. 12 at Quinnsworth Arcade, Sligo Shopping Centre, O'Connell St. Sligo between Five Star Supermarket as lessor and Margaret Conway as lessee.

(b) The parties involved

3. Five Star Supermarket is engaged in the business of supermarkets and in the letting of shop units at Quinnsworth Arcade. Margaret Conway trading as Gemini is engaged in the retail of Fashion Accessories at Unit 12 at the shopping centre.

(c) The notified arrangements

4. The notified shopping centre lease was executed on 14 November 1989 for a term of 20 years from 1 September 1989 between Five Star Supermarket as lessor and Margaret Conway as lessee. The restricted user clauses in the lease are as follows:-

(a) Under clause E.12 the lessee covenants

".....not to use or suffer to be used the demised premises or any part thereof for Banking purposes nor as a Restaurant nor for the sale of intoxicating liquor nor for any other purpose other than as a Shop for the Retail sale of Fashion Accessories without the consent of the Lessor....

(b) Under clause E.15 the lessee covenants

"Not to assign (other than by way of Mortgage) or underlet or share or part with the possession of the demised premises......without the previous written consent of the Lessor such consent not to be unreasonably withheld.

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

Assessment - The applicability of Section 4 (1)

5. The Authority considers that Five Star Supermarket and Margaret Conway 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 Five Star Supermarket and Margaret Conway 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 Five Star Supermarket and Margaret Conway in relation to the lease of the premises at Unit 12 Quinsworth Arcade, Sligo Shopping Centre, O'Connell St. Sligo notified under Section 7 on 30 September 1992 (notification no. CA/1113/92E), does not offend against Section 4 (1) of the Competition Act, 1991.

For the Competition Authority

Des Wall

Member

5 October 1993