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 the University of Limerick and the Bank of Ireland.

2. The notification concerns the grant of a sole concession by the University of Limerick to the Bank of Ireland to carry on the business of a branch bank within the former NIHE area of the University.

3. The Bank of Ireland is the second largest commercial bank in Ireland with a network of 290 branches within the State. The University of Limerick, as successor to NIHE Limerick and Thomond College, is an independent university established under the University of Limerick Act, 1989. It is primarily engaged in the provision of third level education and research with a campus revenue of £28.7m in 1992/3.

4. The notified agreement was made on 25 October, 1984 between the National Institute for Higher Education, Limerick (NIHE) and the Bank of Ireland. Under the agreement NIHE grants to the bank the sole concession of carrying on the ordinary business of a branch bank for a term of 20 years from 1 September 1985 and also agrees to let premises subject to a provision for rent. The parties agree that the agreement shall be deemed to be a licence only and not a lease or a letting within the meaning of the Landlord and Tenant Act. Under the agreement Bank of Ireland may not "assign, transfer or underlet or part with possession or occupation or assign its interest in this concession to any person, bank or other institution" while NIHE agrees "Not to allow advertisements to be placed on the Campus or any form of advertising or canvassing on the Campus in favour of any other bank or building society".

The Agreement also includes a number of standard provisions relating to the occupation and maintenance of the premises.

5. Section 4(1) of the Competition Act, 1991 refers to agreements between undertakings and Section 3(1) of the Act defines an 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". University of Limerick 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 within the former NIHE area of the college. 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 AIB has a similar exclusive concession in relation to the former Thomond College area of the university. In addition there are branches of 4 competitor banks and 4 building societies located within a radius of 3 miles from the university. Under the agreement, University of Limerick has also agreed not to allow advertising or canvassing on the campus in favour of any other bank or building society. In the light of the location involved the Authority would not regard this restriction as having any effect on competition. 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 the University of Limerick and the Governor and Company of the Bank of Ireland in relation to a banking concession at the University of Limerick notified under Section 7 on 30 September 1992 (notification no. CA/330/92E), does not offend against Section 4(1) of the Competition Act, 1991.

For the Competition Authority

Des Wall

Member

10 March 1994