Irish Competition Authority Decisions

1. Notification was made by Peter Mark 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 and Trustee Company Ltd and Peter Mark.

2. The notification concerns the lease of unit 309B in the Dun Laoghaire Shopping Centre, Dun Laoghaire, Co. Dublin between Erin Executor and Trustee Company Ltd, as successor in title to MEPC Ireland Ltd, as Landlord and Peter Mark as tenant.

3. Peter Mark is an unlimited company carrying on the business of hairdressing with approximately 48 outlets in the State including the salon at Dun Laoghaire Shopping Centre. Erin Executor and Trustee Company Ltd is an investment holding company and owner and landlord of the Dun Laoghaire Shopping Centre.

4. Two leases were notified. The earlier lease was made on 6 December, l976 for a term of 35 years from 29 September 1976. The restricted user clauses in this lease are as follows:

(a) Under clause 4.26 the tenant covenants with the landlord:

"Not to assign transfer or under let or part with the possession or occupation of the Demised Unit or any part thereof or suffer any person to occupy the Demised Unit or any part thereof as a licensee or as concessionaire But So That Notwithstanding the foregoing the Landlord shall .....not unreasonably withhold its consent...."

(b) Under clause 4.28 the tenant covenants with the landlord:

"Not without the prior consent in writing of the Landlord or its Agent thereunto lawfully authorised to use or to permit or suffer or allow the Demised Unit or any part or parts thereof to be used for any purpose other than as set forth in Part II of the First Schedule hereto and for no other purpose or purposes whatsoever...."

(c) In the First Schedule, Part II of the lease the permitted user is defined as

"Hairdressing salon, allied trades, and hairdressing training centre, and for the sale of fashion."

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

5. Under a supplemental lease dated 2 April 1990 additional space adjacent to the existing premises was leased for the unexpired term of the original lease subject to "the several covenants provisos and conditions in the Principal Indenture shall apply to the Demised Unit and to the additional premises.....

6. The Authority considers that Peter Mark and Erin Executor and Trustee Company Limited are undertakings and that the notified lease is an agreement between undertakings. The agreements have effect within the State.

7. The Authority considers that the notified agreements, and their restricted and exclusive user clauses 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 agreements between Erin Executor and Trustee Company Limited and Peter Mark do not offend against Section 4(1) of the Competition Act, l99l.

8. 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 agreements between Erin Executor and Trustee Company Limited and Peter Mark in relation to the lease of the premises at Dun Laoghaire Shopping Centre, notified under Section 7 on 30 September 1992 (notification no. CA/1014/92E), do not offend against Section 4(1) of the Competition Act, l99l.

For the Competition Authority

Des Wall

Member

13 October 1993