Irish Competition Authority Decisions

1. Notification was made by Darrigowen Ltd (Darrigowen) on 15 September 1992 with a request for a licence under Section 4(2) of the Competition Act 1991 in respect of a lease between Darrigowen and Allied Irish Investment Managers (AIIM).

2. The notification concerns the lease of a shop unit at 5 The Mall, Donnybrook, Dublin 4 between AIIM as landlord and Darrigowen Ltd trading as Abbey Mall.

3. AIIM, now AIB Investment Managers Ltd, is a wholly owned subsidiary of Allied Irish Banks, plc., engaged in fund management. Darrigowen Ltd under the name Abbey Mall trades as a Newsagents/Convenience Store at the 5 Mall, Donnybrook, Dublin.

4. The notified shop lease was executed on 22 June 1973 for a period of 35 years from 23 May 1972. Darrigowen purchased the tenancy interest in the lease on 13 July 1989. The restricted user clauses in the lease are as follows:-

(a) Under Section III, clause 10, the tenant covenants

"to use the ground floor of the demised premises for the purposes of the retail sale of newspapers, paperbacks, periodicals, greeting cards, cigarettes and tobacco, sweets, ...... and not without the landlords consent in writing which shall not be unreasonably withheld to use or permit or suffer the same or any part thereof to be used for any other purpose.

(b) Under Section IV clause 4 the landlord covenants with the tenant that

"the landlord will not use or allow to be used any part or parts of Donnybrook Mall (other than the ground floor of the demised premises) for the sale of newspapers and periodicals provided always .....

(c) Under Section III, clause 12 the tenant covenants with the landlord

"not to assign sub-let part with or share possession of the demised premises or any part thereof without the consent in writing of the landlord such consent not to be unreasonably withheld...."

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

5. The Authority considers that AIIM and Darrigowen 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 AIIM and Darrigowen 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 Allied Irish Investment Managers and Darrigowen Ltd (trading as Abbey Mall) in relation to the lease of the premises at The Mall, Donnybrook, Dublin 4 notified under Section 7 on 15 September 1992 (notification no. CA/76/92E), does not offend against Section 4 (1) of the Competition Act, 1991.

For the Competition Authority

Des Wall

Member

13 October 1993