Irish Competition Authority Decisions

1. Notification was made by Omni Park Limited on 26 April 1993 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 lease between Omni Park Ltd and Omni Med Ltd.

2. The notification concerns the lease of unit no. 87 Omni Park Centre, Swords Road, Santry, Dublin 9 between Omni Park Ltd as landlord and Omni Med Ltd as the tenant.

3. Omni Park Ltd is the owner and landlord of the Omni Park Centre. Omni Med Ltd is engaged in the provision of medical services to the public.

4. The notified lease was made on 29 March 1993 for a period of 35 years from 8 September 1992. The restricted user clauses in the lease are as follows:

(I) Under clause 4 (12) the tenant covenants with the landlord "Not to transfer assign underlet mortgage charge hold in trust for another part with nor share possession or control or occupation of the Property or any part thereof SAVE AND EXCEPT as is permitted and subject to full compliance with the requirements set out..."

(II) Under clause 4(21) the tenant covenants with the landlord

"(a) Not to use the whole or any part of the Property ................

(v) for the sale of food or foodstuffs

(vi) as a restaurant

(vii) without prejudice to the generality of sub-paragraph (v) and (vi) as a fried fish shop or as a shop for the sale of hot food for consumption off the premises.

(viii) for the sale of any intoxicating liquor ....................

(xii) as a department store

(xiii) as a barber's shop or hairdressing salon or beauty salon

(xiv) for the retail sale of drugs on prescription

(xv) as an opticians

(xvii) without prejudice to the foregoing so as to contravene the Supermarket User Protection Clause the Department Store User ProtectionClause or the Restaurant User Protection Clause or

(xviii) subject to paragraph (b) of this sub-clause otherwise than for the Permitted Use

(b) Subject as aforesaid not to use the whole or any part of the Property for any business other than the Permitted Use without the previous consent in writing of the Landlord which consent shall not be unreasonably withheld

(c) Without prejudice to the generality of sub-paragraph (xvii) of paragraph (a) of this sub-clause of this clause to observe the Core Restrictions as defined in the Supermarket User Protection Clause the Core Restrictions as defined in the Department Store User Protection Clause and the Core Restrictions as defined in the Restaurant User Protection Clause."

(III) The Schedules contain the Core Restrictions involving covenants by the Landlord not to use or permit the use in the centre by any other tenant of an area exceeding 1,500 sq feet for the sale of foodstuffs, an area exceeding 5,000 sq. feet as a department store and an area exceeding 2,000 sq. feet as a Restaurant (excluding fast food shops and a coffee shop).

(IV) Under clause 1(9) the permitted use is defined as " A surgery for general medical practice to include family planning /Wellwoman services health screening services occupational health services sports medicines services pre-employment medical reports and examinations public liability medical reports and services life assurance medical services and also vaccination services. Notwithstanding the foregoing neither the whole nor any part of the Property may be used for the retail sale of drugs on prescription or as an opticians "

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

5. The Authority considers that Omni Park Ltd and Omni Med Ltd 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 restrictive 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 Omni Park Limited and Omni Med Limited 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 Omni Park Limited and Omni Med Limited in relation to the lease of the premises at Omni Park Centre, Swords Road, Santry, Dublin 9, notified under Section 7 on 26 April 1993 (notification no. CA/16/93), does not offend against Section 4(1) of the Competition Act,1991.

For The Competition Authority

Des Wall

Member

21 April, 1994.