Irish Competition Authority Decisions

1. Notification was made by The Governor and Company of the Bank of Ireland (Bank of Ireland) on 30 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 concession agreement between University College Dublin and the Bank of Ireland.

2. The notification concerns the grant by University College Dublin of a sole concession to the Bank of Ireland to operate a bank branch on the university campus at Belfield, Dublin 4.

3. The Bank of Ireland is the second largest commercial bank in Ireland with a network of 290 branches within the State. University College Dublin (UCD) is a constituent college of the National University of Ireland, which was established under the National University Act and incorporated by charter in 1908. UCD enjoys a large degree of autonomy with its own Governing body and is primarily engaged in the provision of third level education and in research. In addition to Government grants of £39m, UCD had an income in 1992 of £19m from academic fees and £11.6m from other sources.

4. The notified agreement was made on 1 October, 1979 for a period of 16 years and extended for a further 10 years from 1 March 1989 by way of supplemental agreement dated 19 September, 1984. Under the agreement, University College Dublin, granted a sole concession to Bank of Ireland to operate a bank branch on the University campus in premises provided rent free by UCD. The agreement also provides for the calculation of an annual licence fee as well as several clauses relating to the occupation and maintenance of the premises. It also specifically provides "...it is hereby mutually agreed that nothing herein contained shall create the relationship of Landlord and Tenant between the College and the Bank in respect of the said premises.".

5. Section 4(1) of the Competition Act, 1991 refers to agreements between undertakings and Section 3(1) of the Act defines undertaking as a "person being an individual, a body corporate or an unincorporated body of persons engaged for gain in the production, supply or distribution of goods or the provision of a service." According to the judgment of the Supreme Court in the VHI case, as delivered by Finlay C.J, the words "for gain" connote merely an activity carried on or a service supplied, as in this case, which is done in return for a charge or payment". UCD is engaged in the provision of the services of third level education and research for which it receives substantial revenue by way of fees etc and it is therefore an undertaking engaged for gain in the provision of a service. Bank of Ireland is an undertaking engaged for gain in the provision of banking and other financial services. The notified agreement is therefore an agreement between undertakings. The agreement has effect within the State.

6. The agreement notified contains standard restrictions and obligations on both parties which are necessary for the maintenance of a proper relationship in regard to the operation of the concession and the occupation of the premises. These do not raise issues under the Competition Act. The agreement also provides for exclusivity in relation to the operation by Bank of Ireland of the banking concession. In a number of earlier decisions the Authority has already indicated its view that exclusive user clauses in the letting of premises in a particular shopping centre or building complex do not offend against Section 4(1) of the Competition Act. For similar reasons this view also applies in relation to the grant of an exclusive concession to use premises in a building complex for the purposes of a business. In this instance while Bank of Ireland is the only bank situated within the university campus, Allied Irish Banks has a branch at the gate of the campus. There are also 6 branches of competitor banks and 2 ATM machine sites within a radius of two miles of the university while four building societies have eleven branches within the same radius. The Authority therefore considers that the notified agreement between University College Dublin and the Bank of Ireland 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 University College, Dublin and the Governor and Company of the Bank of Ireland, in relation to a banking concession at University College, Dublin, notified under Section 7 on 30 September 1992 (notification no. CA/332/92E), does not offend against Section 4 (1) of the Competition Act, 1991.

For the Competition Authority

Des Wall

Member

10 March 1994