Mr DL van Dam – Franchise lawyer
In a judgment of the Amsterdam Court of Appeal dated 31 October 2002, which was issued in response to an appeal lodged against an earlier preliminary injunction, it was ruled that an exclusive purchase obligation with regard to beer and related products is permitted because, according to the Court of Appeal , which falls under the exemption of the Regulation on the application of Article 81(3) of the EC Treaty to categories of vertical agreements, the so-called Block Exemption Regulation, and its predecessor. A factor in this was that the brewer in question, which had imposed the exclusive purchase clause on the customer, also made the business premises of the customer available to that customer in addition to beer and related products. The fact that this provision took place in the context of a leasehold construction did not detract from the reasoning of the Court of Appeal. What is special about this is that in the first instance the President of the District Court ruled that the exclusive purchase clause was also permissible, albeit on the basis of the lack of appreciability, now that the brewer in question remained below the 15% market share limit. The Court of Appeal could also have followed that reasoning, but chose to link up with the Block Exemption Regulation. The lesson that can be drawn from this ruling is that an exclusive purchase clause, also in franchise relationships, can be maintained under various circumstances in several ways. This also applies if the buyer(s) involved in that exclusive purchase clause object(s) to this. It goes without saying that it is and remains important that the exclusive purchase clause otherwise meets the various requirements to be set for it and that it is also justified under the specific circumstances of the case. Testing such a clause in advance is therefore recommended at all times.
Ludwig & Van Dam franchise attorneys, franchise legal advice