Franchisee may not be bound by a non-competition clause
Non-competition clause, franchisee
Recently, the court of Utrecht ruled again on the Super de Boer case against one of its (former) franchisees.
The franchisee involved, who is also a sub-tenant of Super de Boer, did not give up and sold to C1000 and, after a (too) late offer, did not see any point in becoming Jumbo after all. Obviously, the franchisee could not be obliged to do so either. In that sense, the court’s previous verdict was hardly surprising. However, Super de Boer canceled the collaboration. More interesting, therefore, is the court’s subsequent ruling in summary proceedings that the franchisee does not have to comply with the non-competition clause for the time being, since the premature termination of the franchise agreement can therefore be blamed on Super de Boer. With this, Super de Boer, which demanded compliance with the non-competition clause, shot itself in the foot. This also offers perspectives for franchisees who are confronted with a (premature) termination of the franchise agreement by their organization and who are limited (only) by the non-competition clause in choosing a different formula. Whether this will also benefit the franchisee in question in the long term is still the question now that Super de Boer has also started a procedure to evict the leased property, partly on the grounds of urgent personal use. Since the ruling of the Supreme Court regarding Coop/Vomar, the chance that this claim will also be rejected is smaller. The franchisee then only has a claim for an allowance for relocation and refurbishment costs, as well as a separate claim for compensation for the advantage enjoyed by Super de Boer/Jumbo insofar as it will also operate a supermarket at the same location. If this is the case because the main lease has also been terminated.
Ludwig & Van Dam franchise attorneys, franchise legal advice
Other messages
Supermarket letter – 26
Supermarket Newsletter No. 26
Link franchise agreement and rental agreement uncertain? – dated October 14, 2019 – mr K. Bastiaans
It is no exception within a franchise relationship that the parties agree that the franchise agreement and the rental agreement are inextricably linked.
Termination of franchise agreement in case of changes in leased retail space – September 27, 2019 – mr. AW Dolphin
Termination of a franchise agreement in light of a substantial change in the leased retail space.
Article De Nationale Franchisegids: “Distribution of (potential) customers prohibited?” – September 17, 2019 – mr. AW Dolphin
Within many franchise organizations, agreements are made about the recruitment of (potential) customers in a certain area.
District protection no protection against termination due to urgent own use – dated September 17, 2019 – mr. AW Dolphin
As a landlord, can the franchisor terminate the lease for urgent own use, in the sense of district protection, while this would be excluded on the basis of the franchise agreement.
Unreasonable compensation at the end of the franchise agreement – dated September 17, 2019 – mr. AW Dolphin
Some franchise agreements stipulate that the franchisee always owes the franchisor a minimum of a certain amount of costs upon termination of the franchise agreement.