COMPETITION AUTHORITY

Competition Authority Decision of 5 October 1993 relating to a proceeding under Section 4 of the Competition Act, l99l.

Notification No:  CA/816/92E ‑ Eder Trust Company Ltd/D. Horkan Limited.

Decision No: 46

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Notification No.  CA/816/92E ‑ Eder Trust Company Ltd/D. Horkan Ltd

Decision No:  46

Introduction

1.	Notification was made by D. Horkan Limited 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 lease between Eder Trust Company Ltd and D. Horkan Ltd.

The Facts

(a)	The Subject of the notification

2.	The notification concerns the lease of shop unit no. 1 in the Laurel Lodge Shopping Centre, Castleknock, Dublin 15 between Eder Trust Company Ltd as landlord and D. Horkan Ltd as tenant.

(b)	The parties involved

3.	D. Horkan Ltd trades as a newsagent at Laurel Lodge Shopping Centre. Eder Trust Company Limited is the landlord and owner of the Laurel Lodge Shopping Centre,

(c)	The notified arrangements

4.	The notified lease was made on 15 September, 1989 for a period of 999 years from 1 November, 1987.  The restricted user clauses in the lease are as follows:

(a)	Under clause 3.25 the tenant covenants with the landlord:
 "Not to assign, transfer, underlet or part with or share possession or occupation of the demised Unit or any part thereof or suffer any person to occupy the demised unit or any part thereof as a licensee or as a concessionaire But So That Notwithstanding the foregoing the Landlord shall ...... not unreasonably withhold or delay its consent to an assignment, transfer or under‑letting of the entire of the demised Unit ......"

(b)	Under clause 3.26.1 the tenant covenants with the landlord:
 "Not without the prior consent in writing of the Landlord or its agent thereunto lawfully authorised to use or to permit or suffer or allow the demised unit or any part or parts thereof to be used for any purpose other than as set forth in Part III of the First Schedule hereto and for no other purpose or purposes whatsoever ..... "

In the First Schedule, Part III, the permitted user is defined 	2.

as  "To use the premises solely for the purpose of a newsagents including toys, groceries, confectionery, cakes, cards, software, books, tobacco, stationery, photocopying services and lottery and C.I.E. Agents and for no other purpose whatsoever."

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

Assessment ‑ The Applicability of Section 4(1)

5.	The Authority considers that D. Horkan Limited and Eder Trust Company Limited 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 restricted 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 D. Horkan Limited and Eder Trust Company Limited does 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 agreement between   Eder Trust Company Limited and D. Horkan Ltd in relation to the lease of the premises at Laurel Lodge Shopping Centre, Castleknock, Dublin 15 notified under Section 7 on 30 September 1992 (notification no. CA/816/92E), does not offend against Section 4(1) of the Competition Act, l99l.

For the Competition Authority

Des Wall
Member
5 October 1993.