COMPETITION AUTHORITY

Competition Authority Decision of 13 October 1993 relating to a proceeding under Section 4 of the Competition Act, 1991. 

Notification No CA/164/92E ‑ Cybury Ltd./ Tenants of Walkinstown Shopping Centre.

Decision No:  125

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Notification No. CA/164/92E ‑ Cybury Ltd/Tenants of Walkinstown Shopping Centre

Decision No.  125

Introduction

1.	Notification was made by Cybury Ltd on 29 September 1992 with a request for a Certificate under Section 4(4) of the Coompetition 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 leases between Cybury Ltd and tenants at the Walkinstown Shopping Centre.

The Facts

(a)	The subject of the notification

2.	The notification concerns the lease of shop units in the  Walkinstown Shopping Centre, Walkinstown Rd, Dublin 12, between Cybury Ltd as Landlord and 9 tenants at the shopping centre.

(b)	The parties involved

3.	Cybury Ltd, a subsidiary of Baytrust Ltd, is engaged in the letting of shop units at the Walkinstown Shopping Centre. The tenants are engaged in a variety of retail and service activities at the centre.

(c)	The notified arrangements

4.	The standard shopping centre lease notified was in draft form. The restricted user clauses in this lease are as follows:‑

(a)	Under clause 4.26 the tenant covenants  

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

Part II of the First Schedule reads "Permitted User"

(b)	Under clause 4.25 the tenant covenants  

	"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 Unit or any part thereof as a licensee or as a concessionaire BUT SO THAT NOTWITHSTANDING the foregoing the Landlord shall subject to sub‑Clause 7.4 hereof not unreasonably withhold its consent to any assignment, transfer or under‑letting of the entire of the Demised Unit in any case in which the following ........

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

Cybury Ltd have advised details of the Permitted User attaching to each tenant whereby each tenant is restricted to particular specified trading activities.

Assessment ‑ The applicability of section 4 (1)

5.	The Authority considers that Cybury Ltd and the tenants are undertakings and that the notified leases are agreements between undertakings.  The agreements have effect within the State.

6.	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 Cybury Ltd and the tenants do not offend against Section 4(1) of the Competition Act l99l.

The Certificate

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 agreements between Cybury Ltd and the tenants in relation to the leases of  premises at Walkinstown Shopping Centre, Walkinstown Rd, Dublin 12 notified under Section 7 on 29 September 1992 (notification no. CA/164/92E), do not offend against Section 4(1) of the Competition Act, l99l.

For the Competition Authority

Des Wall
Member
13 October 1993