Since 2011, competition law, which prohibits agreements which have an anti-competitive "object" or "effect", has applied to land agreements including commercial leases. Shopping centre tenants often seek to be protected from competition by similar businesses. When another tenant wishes to engage in a competing activity, the question arises whether the restriction in the existing lease is anti-competitive or not. This will typically depend on whether the relevant market is wider than the shopping centre itself.

A court of appeal in The Hague recently held that a clause in a lease banning a shopping mall from renting space to a competing business is not an illegal restriction under competition law.

Since 2007, the Winkelcentrum Ypenburg mall in The Hague had a lease agreement with Corfu, a Greek restaurant. That lease contained a provision that Ypenburg would not rent out any space in the mall to a “shawarma/doner kebab restaurant”. In 2011, Ypenburg rented a space adjacent to Corfu to a Turkish restaurant, Taze, which offered ‘shawarma/doner kebab’ on its menu. Corfu initiated a court action against Ypenburg claiming that the shopping centre had, in renting to Taze, breached its own contractual terms which led to losses for the Greek restaurant. Ypenburg defended on the grounds that the kebab clause was invalid as a 'by object' restriction of Dutch and European competition law. The Dutch appeal court overturned the lower court and held that the lease was not void as the offending ‘kebab’ clause was not in breach of either Dutch or EU competition law because it was not a “by object” (meaning by its very nature) restriction of competition. Relying on a previous ruling of the European Court of Justice (in Maxima Latvija v Konkurences Padome), the Dutch court of appeals held that similar terms in leasing contracts are not by their nature illegal restrictions on competition and that Ypenburg failed to prove that the clause did have anticompetitive effects.

In a similar decision, the Limburg District Court ruled that a lease agreement which restricted a supermarket within a shopping centre from selling certain types of bread and baked goods was not anticompetitive.

The supermarket signed an agreement with the shopping centre owners, which included restrictions on selling certain baked goods. A bakery, based within the shopping centre, and the shopping centre owners later claimed that the supermarket had breached the non-compete clause, by selling goods excluded by the agreement. In response, the supermarket argued that the agreement was invalid, as it breached competition law. Their position was that the terms of the agreement restricted competition and aimed to preserve the monopoly of the bakery. The court found that the supermarket had not 'sufficiently established that there is an appreciable distortion of competition in the relevant market’ as the supermarket could continue to sell the prohibited products at locations outside the shopping centre. The ‘relevant market’ remained undefined in the judgement.

The supermarket was ordered by the court to stop selling the baked goods prohibited in the agreement from its location in the shopping centre.