Irish Competition Authority Decisions

1. Notification was made by D. Horkan Limited 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 Erin Executor & Trustee Co. Ltd and D.Horkan Ltd.

2. The notification concerns the lease of unit C, Roselawn Shopping Centre, Blanchardstown, Dublin 15 between Erin Executor & Trustee Co. Ltd as landlord and D. Horkan Ltd as tenant.

3. D. Horkan Ltd trades as a newsagent at several outlets in Dublin including Roselawn Shopping Centre. Erin Executor & Trustee Co. Ltd is an investment trust holding company and is the owner of shop units at the Roselawn Shopping Centre.

4. The notified lease was executed on 5 October 1977 for a term of "any integral multiple of 33 years" from 29 September, l976. The restricted user clauses in the lease are as follows:

(i) Under clause 4(17) the tenant covenants with the landlord

(a) Not to assign underlet or part with or share the possession control or occupation of nor to franchise the use of part only of the demised premises;

(b) Not to assign underlet or part with or share the possession control or occupation of nor to franchise the use of the whole of the demised premises without the licence in writing of the landlord first obtained which licence shall not be unreasonably withheld...."

(ii) Under clause 4(20) the tenant covenants with the landlord:

"To use the demised premises for the purpose of a newsagency and retail outlet for books, cards, general stationery, confectionery, toys, calculators, cigarettes and tobacco and not without the Lessor's consent in writing (which shall not be unreasonably withheld but giving due regard to the conditions of good estate management and the interests of tenants or occupiers of other premises in the Shopping Centre) to use or permit or suffer same or any part thereof to be used for any other purpose - that the Lessee shall have the sole right in the Shopping Centre to sell and deal in cash for newspapers..."

(iii) By deed of indenture dated 27 September 1991 the landlord agreed

"...to the extension of the use of the premises to include software, photocopy service, lottery and Dublin Bus agents and to act as an agent to take in unprocessed films and to send them elsewhere to be processed."

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

5. The Authority considers that D. Horkan Limited and Erin Executor Trustee Co. 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 Erin Executor Trustee Co. Ltd and D.Horkan Ltd 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 Erin Executor and Trustee Company Ltd and D. Horkan Ltd in relation to the lease of the premises at Roselawn Shopping Centre, Blanchardstown, Co. Dublin notified under Section 7 on 30 September 1992 (notification no. CA/819/92E), does not offend against Section 4(1) of the Competition Act, l99l.

For the Competition Authority

Des Wall

Member

13 October 1993