Irish Competition Authority Decisions

1. Notification was made by Peter Mark 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 Superquinn and Peter Mark.

2. The notification concerns the lease of shop unit No.9 at Superquinn Shopping Centre, Newcastle Rd., Lucan, Co. Dublin between Superquinn as landlord and Peter Mark as tenant.

3. Superquinn are involved in the business of trading as a supermarket and in property letting at several shopping centres including the Lucan shopping centre. Peter Mark is an unlimited company carrying on the business of hairdressing with around 48 hairdressing salons in the State including the salon at the Lucan centre.

4. The shopping centre lease notified was executed on 29 April 1992 for a term of 35 years from 10 September 1991 between Superquinn as Landlord and Peter Mark as tenant. The restricted user clauses in this lease are as follows:-

(a) Under clause 3.13 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 purpose other than that specified in the Fifth Schedule hereto and for no other purpose or purposes whatsoever.............."

The Fifth Schedule reads under the heading "User",

"The retail trade or business of ladies and gentleman's hairdressing salon and for the sale of hair care and beauty products and for carrying out beauty treatment including sun ray treatment and as a solarium"

(b) Under clause 3.44 the tenant covenants

".1 Not to assign, underlet or part with or share the possession or occupation of any part of the Demised Unit........under any circumstances whatsoever.

.2 Not to assign, underlet or part with or share the possession or occupation of the whole of the Demised Unit except to a suitable and solvent party and subject to the written consent of the Landlord........"

(c) By way of side letter, the Landlord has also confirmed that the Landlord shall not grant, during the currency of the lease, a letting of any of the units in phase 1 of the shopping centre with a user which would permit a hairdressing salon nor would consent be given for a change of user in those units which would permit hairdressing.

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

5. The Authority considers that Superquinn and Peter Mark 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 Superquinn and Peter Mark 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 Superquinn and Peter Mark in relation to the lease of Unit No.9 at Superquinn Shopping Centre, Newcastle Rd., Lucan, Co. Dublin notified under Section 7 on 30 September 1992 (notification no. CA/1022/92E), does not offend against Section 4 (1) of the Competition Act, 1991.

For the Competition Authority

Des Wall

Member

13 October 1993