Bart’s Retail ruled in favor of subdistrict court judge in Nijmegen – 11 March 2016 – mr. T. Meijer

By Published On: 11-03-2016Categories: Statements & current affairs

On March 11, 2016, the District Court of Gelderland Team Kanton location Nijmegen issued a final judgment in the lawsuits brought by a number of Bakker Bart franchisees. (ECLI:NL:RBGEL:2016:1387 District Court of Gelderland, 11-03-2016, 3896415) In these judgments, all claims of these franchisees have been rejected. 

The cause of the current commotion in the world of franchise has been sought by many in the alleged abuses within Bakker Bart’s formula. Numerous media outlets have paid attention to the views of the franchisees. Everything would be wrong and a class action lawsuit by franchisees against the franchisor would be necessary to expose these wrongs. The alleged damage would run into the tens of millions and the reproaches against the franchisor ran high. In the end, eleven franchisees brought an equal number of individual proceedings against Bart’s Retail. One procedure was previously withdrawn and the remaining ten cases have now been ruled by the Subdistrict Court in Nijmegen. 

Since the franchisees have also based their claims on an alleged fictitious employment relationship, the court in Arnhem, where the franchisees brought their cases in the first instance, ruled that it was wrongly applied for and that the franchisees should file their claims before the competent subdistrict court judge. Nijmegen had to apply. This Subdistrict Court has therefore now substantively assessed the claims of the franchisees.

Rental system of January 1, 2009

The franchisees have accused Bart’s Retail of paying too much rent as a result of the newly introduced rental system, in close consultation with the franchisees’ association and its advisers. Previously, the franchisees paid a turnover-related rent. As a result of a negative judicial opinion on this method of rent charging, it was no longer tenable, so the parties opted to charge the actual rent. To this end, a covenant was concluded between Bart’s Retail and the Bart’s Franchise Association, on the basis of which the new system was introduced. The franchisees have been of the opinion that this new system has worked out to their disadvantage and that they have been wrong about this. The Subdistrict Court ruled that the individual franchisees were not contracting parties to the concluded covenant, so that their claims for annulment should be declared inadmissible. In addition, the Subdistrict Court ruled that the new system had a positive effect for many franchisees. Insofar as this has not already been the case, this was primarily caused by the declining turnover. In any case, this was a foreseeable consequence of the new system, so that the franchisees could not have been wrong about this. Apart from the inadmissibility, all alleged claims on the basis of the alleged error have been rejected by the Subdistrict Court.

 The Subdistrict Court then rules that the other claims of the franchisees on the basis of alleged breach of contract or unlawful act on the part of Bart’s Retail cannot be allowed either because of the defense put forward by Bart’s Retail. The same applies to the alleged claim based on unforeseen circumstances and alleged conflict with reasonableness and fairness. None of the accusations put forward by the franchisees stand up and the Subdistrict Court has rejected them one by one in the judgment.

Wholesale margin on pasta

The alleged claims of the franchisees on the basis of the allegedly high wholesale margins are also rejected by the Subdistrict Court. The Subdistrict Court follows Bart’s Retail in its assertions that the advisors hired by the franchisees have ruled that the total chain margin within the formula is reasonable. Therefore, according to the Subdistrict Court, there is no question of any unlawful act. According to the Subdistrict Court, the franchisees have not sufficiently argued, let alone demonstrated, to substantiate the alleged claims. The same applies to claims based on unforeseen circumstances and reasonableness and fairness. Again, all franchisees’ claims are denied.

Duty of care

The franchisees have also made various far-reaching accusations to Bart’s Retail about alleged non-compliance with the duty of care. The Subdistrict Court devotes a separate consideration to this. These accusations are also set aside by the Subdistrict Court. It is expressly noted here that the consultants of the franchisees have previously correctly indicated that the assistance provided by Bart’s Retail is above average. Taking this point of view into account, the franchisees have not put forward enough, according to the Kanonrechter, to arrive at a different opinion. Again, all claims of the franchisees in this regard are rejected.

Alleged bogus self-employment

The reason for the referral of the proceedings to the Subdistrict Court is the bogus self-employment put forward by the franchisees. In the opinion of the franchisees, there would be a fictitious employment relationship. Claims arising from an employment relationship fall under the jurisdiction of the subdistrict court judge. However, this makes short shrift of the franchisees’ statements about this alleged fictitious employment. In the light of Bart’s Retail’s defense that there is no question of any bogus self-employment at all and that the franchisees act as independent entrepreneurs, the Subdistrict Court rules that the franchisees provide insufficient factual substantiation for their assertions. It is emphasized here that the intention of the parties and the way in which they formed their agreement should be decisive in assessing whether there is an employment contract. In the opinion of the Subdistrict Court, this was not the case in these cases. The franchisees are therefore independent entrepreneurs with no bogus self-employment.

The conclusion of these proceedings is that Bart’s Retail has passed the test of the court with flying colours. Despite all the commotion, the Subdistrict Court has substantively assessed all alleged accusations put forward by the franchisees and rejected them on the basis of the defense put forward by Bart’s Retail and the known facts and circumstances. Not only the size of the collective, only ten franchisees have completed the procedure to the end, the content and substantiation of the accusations made by them must also be labeled as ‘a storm in a teacup’. When asked, Bart’s Retail has rightly stated that it does not want to focus on the past, but on the future.

mr. T. Meijer – Franchise lawyer
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