Exclusivity clause in lease agreements for commercial premises from the perspective of Slovak and European competition law
Exclusivity clause in lease agreements for commercial premises from the perspective of Slovak and European competition law

Author(s): Martin Winkler
Subject(s): Law, Constitution, Jurisprudence, EU-Legislation, Commercial Law, Comparative Law
Published by: Societatea de Stiinte Juridice si Administrative
Keywords: agreement having as its object the restriction of competition; agreement having the effect of restricting competition; agreement restricting competition; exclusivity clause;
Summary/Abstract: A relatively frequent practice when concluding lease agreements for commercial premises in shopping centres is the tenants' requirement towards lessors for so-called exclusivity, i.e. the requirement not to lease commercial premises in the same shopping centre to their competitors or vice versa – the landlords' requirement towards tenants to include a so-called radius clause in lease agreements, where the tenant may not conclude a lease agreement for another commercial premise in a certain area within a specified distance from the shopping centre. In this paper, we look at this issue from a competition law perspective. A lease agreement with an exclusivity clause or radius clause may fulfil the defining features of an agreement restricting competition, which is prohibited under Article 101 of the Treaty on the Functioning of the EU and Section 4 of Slovak Act No. 187/2021 Coll. on the protection of economic competition. Although the courts in the Slovak Republic have not yet dealt with this issue, it has become the subject of judicial review of decisions of antimonopoly offices in other European countries and also the Court of Justice of the EU has entered into the valid legal regulation with its decisions. The aim of this paper is to define, after an analysis of the valid legal regulation and the case-law in several European countries and of the Court of Justice of the EU, the criteria under which lease agreements with exclusivity clause may be considered to be in compliance with European and Slovak law.

• Details
• Contents