COMPETITION AUTHORITY

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

Notification No:  CA/471/92E ‑ Westlake Estates Ltd/Tenants of The Town Mall, Mullingar.

Decision No: 87

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Notification No. CA/471/92E ‑ Westlake Estates Ltd/Tenants of The Town Mall, Mullingar 

Decision No. 87

Introduction

1.	Notification was made by Westlake Estates Ltd (Westlake) 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 standard lease relating to letting of premises between Westlake and the tenants of The Town Mall, Mullingar, Co. Westmeath. 

The Facts

(a)	The subject of the notification

2.	The notification concerns the leases of shop units at The Town Mall, Mullingar, between Westlake as landlord and 17 tenants.

(b)	The parties involved

3.	Westlake is owner and landlord of the shopping Mall.  The tenants are engaged in various trading activities at the Mall.

(c)	The notified arrangements

4.	The standard shopping centre lease notified was executed on 19 March 1986 for a period of 9 years and 11 months from 5 December 1985 between Westlake as Landlord and Margaret Mc Evilly as tenant. The restricted user clauses in the lease are as follows:‑

(a)	Under clause 4.27.1 of the agreement the tenant covenants 

"Not without prior consent in writing of the Landlord or its agent thereunto lawfully authorised to use or to permit to 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 II of the First Schedule hereto and for no other purpose or purposes whatsoever......

Part II of the first Schedule reads  "The tenant shall use the premises for no other purpose other than that of a Ladies Fashion Boutique specifically excluding the sale of children's clothes or clothing of a sporting nature.  The landlord will agree not to let any of the other thirteen units in the first phase of the Town Centre for the permitted user of the tenant herein.  However both the Tenant of Unit Number 4 and the tenant will be permitted to sell maternity wear".

(c)	Under clause 4.26 the tenant covenants with the landlord 

"Not to assign transfer or sublet or part with the possession or occupation of the Demised Unit or any part thereof or suffer any person to occupy the Demised Unit or any part thereof or suffer any person to occupy the Demised Unit or any part thereof as Licensee BUT SO THAT NOTWITHSTANDING the foregoing the Landlord shall subject to sub‑Clause 7.4 hereof not unreasonably withhold its consent ........

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

Assessment ‑ The applicability of Section 4 (1)

5.	The Authority considers that Westlake and its tenants are undertakings and that the standard lease notified is an agreement between undertakings. The agreement has effect within the State.

6.	The Authority considers that the notified standard 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 standard agreement between Westlake and the tenant does not offend against Section 4 (1) of the Competition Act 1991.

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 standard agreement between Westlake Estates Ltd and its tenants in relation to the lease of premises at The Town Mall, Mullingar, Co. Westmeath notified under Section 7 on 30 September 1992 (notification no. CA/471/92E), does not offend against Section 4 (1) of the Competition Act, 1991.

For the Competition Authority

Des Wall
Member
5 October 1993