Guidance on the Limits for the Use of Restrictive Clauses in Commercial Lease Agreements – Once Again on Restrictions “by Object”. Case Comment to the Preliminary Ruling of the Court of Justice of 26 November 2015 SIA ‘Maxima Latvija’ v Konkurences padome (Case C-345/14)

Abstract

The Court of Justice (hereinafter, CJ or Court) held in case C-345/14 SIA ‘Maxima Latvija’ v Konkurences padome that the inclusion of a clause that allows a tenant to indirectly select a neighbour of adjoining shopping centre spaces is not a restriction “by object”. On the example of Maxima Latvija (a supermarket chain active predominantly in the food sector), the CJ outlined under which conditions can competition law concerns arise from non-compete clauses in lease agreements concerning shop premises. The existence of a right to veto over potential tenants of adjourning shop premises may have the effect of restricting competition within the meaning of Article 101(1) TFEU, and should thus be assessed according to its market impact. Although the Court recognised that a unilateral decision on the lease of other commercial spaces is not by its nature anti-competitive, an effect-based assessment would require a multi-faceted analysis, which might still find a competition law infringement. Although the multi-criteria analysis proposed by the CJ is somewhat blurry, the judgment is a valuable contribution to the debate on the restrictive interpretation of “by object” restrictions.