Irish Competition Authority Decisions

1. Notification was made by Frederick and Mary Cleary on 28 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 Rita Power and Frederick and Mary Cleary.

2. The notification concerns the lease of a shop at 26 St Gabriel's Road, Clontarf, Dublin 3 between Rita Power as landlord and Frederick and Mary Cleary as tenants.

3. Rita Power is engaged in the letting of shops at St Gabriel's Road. Frederick and Mary Cleary are engaged in the business of newsagent and tobacconist at 26 St Gabriel's Road.

4. The Shop lease notified was executed on 12 December 1984 for a term of 35 years from 1 August 1982. The restricted user clauses in the lease are as follows:-

(a) Under clause 2(c) the tenants covenant with the Landlord "To carry on the business of a tobacconist and Newsagent including the sale of sugar, confectionery and Ice cream with liberty also to carry on (a) the business of a lending library and (b) a Post-Office business if duly authorised by the Postal Authorities and no other business whatsoever in the premises hereby demised without the express authority in writing of the Lessor. It is hereby expressly agreed that the Lessor reserves the right to terminate the liberty hereby granted to carry on a Post Office business in the event of the Lessees ceasing to carry on the said Post Office business."

(b) Under clause 2(g) the tenant covenants "Not to sub-let or assign the said premises or any part thereof or in any way part with the possession without the consent in writing of the Landlord first had and obtained".

(c) Under clause 7 " THE LANDLORD AGREES with the Tenant not to allow the business of a Tobacconist or Newsagent to be carried on in any other of the shops constructed by her in the Shopping Centre opposite St. Gabriel's Church or on either side of Dollymount Grove AND AGREES to take all steps necessary to enforce compliance by the owners or Lessees of such shops of the covenant against the use by said owners or Lessees of the said premises for the business of Tobacconist and Newsagent.

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

5. The Authority considers that Rita Power and Frederick and Mary Cleary 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 Rita Power and Frederick and Mary Cleary 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 Rita Power and Frederick and Mary Cleary in relation to the lease of premises at 26 St Gabriel's Road, Clontarf, Dublin 3 notified under Section 7 on 28 September 1992 (notification no. CA/151/ 92E), does not offend against Section 4(1) of the Competition Act,l99l.

For the Competition Authority

Des Wall

Member

4 February 1994.