Franchise agreement or employment contract?
“Franchise Agreement” is not a legal term. The law sees a franchise agreement as an ordinary agreement. A so-called unnamed agreement. This means that, provided that within the legal limits of, for example, competition law, people are allowed to agree on what they want. This is fundamentally different from the term “employment contract”. It is not determined by the parties, but by the legislator when an agreement must be regarded as an employment contract. The consequence of this is known. A wide range of legal rules of a social and fiscal nature are poured into the agreement and the parties are squeezed into an employment law straitjacket in the polder model. The employment contract is therefore a so-called named contract. According to the law, an agreement is in principle an employment contract if one has committed himself to perform personal work in an authority relationship and receives a remuneration for this. For that qualification, not only the (original) party intention, but also the actual performance of the agreement is important.
The boundary between employment contract and franchise agreement is increasingly becoming blurred. Work that used to be performed as an employee is now often carried out by means of a franchise agreement with “self-employed persons”. Common examples of this can be found at service providers and delivery companies, among others. Not only the tax authorities and UWV, but also disappointed franchisees can adopt a critical attitude towards these situations and afterwards, often successfully, state that what the parties had intended as a franchise agreement is in fact an employment contract. It goes without saying that the consequences of this can be significant. The franchisee is therefore wise to request a declaration of self-employment (VAR declaration) from the tax authorities in advance. The franchisor would be wise to set up his franchise agreement in such a way that it cannot be regarded as an employment contract and to have it tested in advance by the UWV and the tax authorities.
Ludwig & Van Dam franchise attorneys, franchise legal advice
![](https://ludwigvandam.megaconcept.nl/wp-content/uploads/2020/12/232court-min-400x222.jpg)
Other messages
Unauthorized unilateral collective fee increase by the franchisor
In an important decision of the Amsterdam Court of Appeal of 23 April 2014, the question was whether a franchisor was allowed to implement an increase in a contribution.
Interests Association of Franchisees of the Netherlands (BVFN) is in further consultation with the Minister
On April 16, 2014, the previously announced meeting between the Belangen Vereniging Franchisenemers Nederland (BVFN) and the Ministry of Economic Affairs took place.
Exoneration of duty of care with the franchisor’s prognosis
In a judgment of the Overijssel court of 9 April 2014, the interesting question arose whether a collaboration should be qualified as a franchise.
Non-competition clause is lost in summary proceedings
Recently, the preliminary relief judge in Rotterdam ruled that a franchisee was not bound by the non-competition clause included in the franchise agreement.
Advance on compensation after an unsound prognosis
In a beautifully substantiated summary judgment of the Northern Netherlands Court of 9 April 2014, the question was whether an advance should be paid for the damage assessment procedure.
Collection point requires shopping destination
In my supermarket newsletter of July 11, 2013, I already predicted that the establishment of collection points for goods ordered via the internet would set the judicial pens in motion.