Void franchise agreement due to violation of standstill period
What are the consequences if the standstill period is violated? This was ruled on in a judgment of the Belgian Court of Cassation of June 2, 2023 (C.22.0408.N). This Belgian case is also important for Dutch legal practice, as the regulation on the standstill period in the Franchise Act (Article 7:914 of the Dutch Civil Code) is based on Belgian regulations (Article X.27 WER). See House of Representatives, session year 2019–2020, 35 392, no. 3, p. 9 and 34.
Under Belgian law, in a period prior to the conclusion of the franchise agreement, a contract may not be entered into with the franchisee that could be disadvantageous for the intended franchisee. If this does happen, the franchise agreement concluded subsequently could be null and void.
A franchisee of the Belgian supermarket formula Carrefour had prematurely ceased the operation of his company due to persistent losses. The predetermined turnover forecast was not achieved. The franchisor demanded payment of the outstanding rental invoices. In its counterclaim, the franchisee relied on the nullity of the franchise agreement, because the franchise agreement had already been signed too soon after the pre-contractual information had been provided.
The court of appeal ruled that the franchisor was not only obliged to make restitution but also to make full compensation for the damage suffered by the franchisee as a result of the void agreements. The franchisor appealed against this.
However, the Court of Cassation of Belgium confirmed that with the annulment of the franchise agreement, a related rental agreement is also annulled. It was also confirmed that in addition to the refund of the amounts paid by the franchisee to the franchisor, the franchisee can additionally claim compensation for damages, as failure to observe the standstill period is a mistake (an unlawful act) on the part of the franchisor. This includes costs incurred by the franchisee in terms of investments and energy.
According to Belgian law, the violation of the standstill period also appears to imply unlawful conduct that entitles the right to compensation for damage, in addition to the obligation to repay franchise fees paid to the franchisor. It is not inconceivable that the Dutch court will rule in a similar manner in such cases.
Ludwig & Van Dam lawyers, franchise legal advice.
Do you want to respond? Then email to dolphijn@ludwigvandam.nl
Other messages
Ludwig & Van Dam attorneys summon Sandd and PostNL on behalf of the Sandd franchisees – dated 9 January 2020 – mr. AW Dolphin
The Association of Franchisees of Sandd (VFS) has today summoned Sandd and PostNL before the court in Arnhem. The VFS believes that Sandd and PostNL are letting the franchisees down hard.
Article The National Franchise Guide: “Why joint and several liability, for example, next to private?” – dated 7 January 2020 – mr. AW Dolphin
Franchisees are often asked to co-sign the franchise agreement in addition to their franchise, for example. Sometimes franchisees refuse to do so and the franchise agreement is not signed.
Ludwig & Van Dam Advocaten assists Sandd franchisees: Franchisees Sandd challenge postal monopoly in court – dated 12 November 2019 – mr. AW Dolphin
The Association of Franchisees of Sandd (VFS) is challenging the decision of State Secretary Mona Keijzer to approve the postal merger between PostNL and Sandd before the court in Rotterdam.
Franchisee trapped by non-compete clause? – dated October 21, 2019 – mr. AW Dolphin
The District Court of East Brabant has ruled that a franchisee was still bound by the non-competition clause in the event of premature termination of the franchise agreement.
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.