Purchase obligation and competitive prices
On 9 September 2015, the District Court of the Northern Netherlands (ECLI:NL:RBNNE:2015:4271) rendered a judgment on the question of whether a franchisor charged market prices in the case of an exclusive purchasing obligation.
Franchisees accuse the franchisor of misusing the prescribed purchase obligation because prices were not charged in line with the market. The franchise agreement prescribes that the prices must be in line with the market.
The court concludes that the franchisees have not sufficiently substantiated that the franchisor charged them prices that were not in line with the market. The mere fact that other suppliers had cheaper prices at different times (and usually for a limited number of products) is not sufficient for this. It cannot in any way be deduced from the statements of the franchisees that other suppliers could continuously supply all franchisees at those lower prices, according to the opinion.
Since, according to the court, the franchisees have not provided sufficient evidence to conclude that the franchisor has not supplied at market prices, there is no reason to allow them to provide further evidence. The opening of books requested by the franchisees is therefore also not ordered. Incidentally, the court also notes that the franchisees have not made it sufficiently clear why disclosure could contribute to relevant evidence. After all, the prices charged by the franchisor to the franchisees are known and the possibilities and prices of other providers will not be found in the books of the franchisor.
The claimed liability of the (indirect) directors and/or shareholders of the franchisor are also rejected in line with the foregoing.
Once again it appears that strict requirements are imposed on the substantiation of the statement that there are no market-based prices in the case of exclusive purchasing obligations.
Mr AW Dolphijn – Franchise lawyer
Ludwig & Van Dam Franchise attorneys, franchise legal advice. Do you want to respond? Mail to dolphijn@ludwigvandam.nl
Other messages
Article De Nationale Franchise Gids: “Information obligations of the intended franchisee under the Franchise Act” – dated August 7, 2020 – mr. AW Dolphin
Although the purpose of the Franchise Act is to protect franchisees against franchisors, a number of obligations have also been laid down for franchisees.
Legislative text of the Franchise Act – dated July 24, 2020 – mr. AW Dolphin
The legal text of the Franchise Act was published in the Staatsblad on 1 July 2020. The full legal text reads as follows:
Law Franchise – dated July 23, 2020 – mr. AW Dolphin
The Franchise Act will have a considerable impact on both franchisors and franchisees.
Contractual dissolution requirements not observed? No legal dissolution of the franchise agreement – dated July 23, 2020 – mr. C. Damen
Can a franchisor terminate the franchise agreement if it has failed to comply with its own contractual requirements?
Legal ban on unilaterally changing opening hours by the franchisor – July 13, 2020 – mr. J. Strong
Legislative proposal of the State Secretary which, in short, means that the shopkeeper may not be bound by unilateral changes to the opening hours during the term of the agreement.
No right to extension of franchise agreement – July 6, 2020 – mr. AW Dolphin
Can a franchisor refuse to renew the franchise agreement if the franchisee does not agree to amended terms of a new franchise agreement?