Notification No CA/300/92E ‑ Hoorn & Winkel (Ireland) Limited/ Tenants of Ballinteer Shopping Centre.

Decision No:  150

Introduction

1.	Notification was made by Hoorn & Winkel (Ireland) Limited on 30 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 leases between Hoorn & Winkel (Ireland) Limited and its tenants at Ballinteer Shopping Centre.

The Facts

(a)	Subject of the notification

2.	The notification concerns the leases relating to the letting of shop units at Ballinteer Shopping Centre, Ballinteer Ave., Dundrum, Dublin 16 between Hoorn & Winkel (Ireland) Limited as landlord and the tenants of 8 units at the shopping centre.

(b)	The parties involved

3.	Hoorn & Winkel (Ireland) Limited is the owner and landlord of the Ballinteer Shopping Centre.  The tenants are engaged in various retail and service activities at the centre.

(c)	The notified arrangements

4.	The standard shopping centre lease notified contains the following restricted user clauses viz.

(a)	Under clause 2 the landlord and the tenant agreed 

"...that the said premises are demised for use for the purposes hereinafter more particularly described and for any further purpose which may with the consent of the Landlord as hereinafter provided be authorised under or by virtue of the Local Government (Planning & Development) Act, l963."

(b)	Under clause 12 the tenant covenants with the landlord 

"To use the demised premises for the purpose of                  only and not without the Landlord's consent in writing which shall not be unreasonably withheld or use or permit or suffer the same or any part thereof to be used for any other purpose."

(c)	Under clause 14 the tenant covenants with the landlord 

"Not to assign sub‑let part with or share possession of the demised premises or any part thereof without the consent in writing of the Landlord (such consent not to be unreasonably withheld) ..."

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

5.	Hoorn & Winkel have furnished details of the permitted user under clause 12 attaching to each lease whereby the tenant is restricted to particular specified trading or service activities.

Assessment ‑ The Applicability of Section 4(1)

6.	The Authority considers that Hoorn & Winkel (Ireland) Limited and the tenants are undertakings and that the notified leases are agreements between undertakings.  The agreements have effect within the State.

7.	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, l993 in respect of shopping centre leases (Iris Oifigiuil of l0 September, l993, pp. 665‑667).  The Authority therefore considers that the notified agreements between Hoorn & Winkel (Ireland) Limited and its tenants do not offend against section 4(1) of the Competition Act, l99l.

The Certificate

8.	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 Hoorn & Winkel (Ireland) Limited and its tenants in relation to the lease of the premises at Ballinteer Shopping Centre, Ballinteer Ave, Dundrum, Dublin 16 notified under Section 7 on 30 September, l992 (notification no. CA/300/92E), do not offend against Section 4(1) of the Competition Act, l99l.   

For the Competition Authority

Des Wall
Member
3 December 1993