Irish Competition Authority Decisions

1. Notification was made by Brendan Doherty on 29 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 Ardenheath Company Ltd and Brendan and Sheila Doherty and Declan O'Brien (Doherty/O'Brien).

2. The notification concerns the lease of unit no. 5 in Mount View Shopping Centre, Blanchardstown, Dublin 15 between Ardenheath Company Limited as Lessor and Doherty/O'Brien as lessee.

3. Doherty/O'Brien to whom the lessee interest was assigned in July 1991 trade as Victuallers at Unit 5 Mount View Shopping Centre. Ardenheath Company Limited is the owner and landlord of the Mount View Shopping Centre.

4. The notified lease was made on 13 December 1982 for a term of 33 years from 1 November, 1982. The restricted user clauses in the lease are as follows:

(a) Under clause b.10 the tenant covenants with the landlord

"Subject to clause 14 of the Third Schedule hereto to use the demised premises for the purpose of Victuallers and not without the lessor's consent in writing which shall not be unreasonably withheld to use or permit or suffer the same of any part thereof to be used for any other purpose".

(b) Under clause b.12 the tenant covenants with the landlord

"Not to assign sub-let part or share possession of the demised premises or any part thereof without the lessors prior consent, which consent shall not be unreasonably withheld".

(c) Under clause 14(c) of the Third Schedule the tenant covenants with the landlord

"Not to change the user of the demised premises to any trade or business the same or similar to any trade or business being carried on in any other shop, unit or units at Mount View Shopping Centre without prior consent of the lessor in writing".

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

5. The Authority considers that Ardenheath Company Limited and Doherty/O'Brien 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 Arden Heath Company Limited and Brendan and Sheila Doherty and Declan O'Brien 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 Ardenheath Company Limited and Brendan and Sheila Doherty and Declan O'Brien in relation to the lease of the premises at Mount View Shopping Centre, Blanchardstown, Dublin 15 notified under Section 7 on 29 September 1992 (notification no. CA/205/92E), does not offend against Section 4(1) of the Competition Act, l99l.

For the Competition Authority

Des Wall

Member

13 October 1993