Banned for supermarkets
Can the landlord of a shopping center prohibit tenants from operating a supermarket in the shopping center for 40 years? Is that also allowed if the landlord is a large supermarket chain that is the only one with a supermarket in the shopping center and therefore only wants to keep competitors out? These questions were addressed by the Court of Appeal in Den Bosch.
In the judgment of 5 July 2016 (ECLI:NL:GHSHE:2016:2698), the Court of Appeal considered whether Jumbo, as the owner of a shopping centre, could have stipulated in the lease that no other supermarket could be operated in the shopping centre. the period from 2003 to 2043. The tenant wants to get rid of that clause and wishes to have a supermarket operated in the shopping center in addition to the existing Jumbo supermarket in the shopping centre.
The tenant invokes competition law. She believes that Jumbo only imposed the ban on another supermarket because it already operated a supermarket in the shopping centre. This means that competitors are kept outside the door of the shopping center and there is therefore a distortion of competition.
The court considers that the question is whether there has been any distortion of competition. An indication that this is not the case follows from the fact that an Aldi is located right next to the shopping centre. An appreciable effect on competition is therefore not demonstrated.
Jumbo’s ban on other supermarkets in the shopping center therefore remains intact. However, if an Aldi had not been located right next to the shopping centre, the outcome of the procedure might have been different.
mr. AW Dolphijn – Franchise lawyer
Ludwig & Van Dam Franchise attorneys, franchise legal advice.
Do you want to respond? Go to dolphijn@ludwigvandam.nl
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