Litigation as a franchisees association.

The Eye Wish Opticiens franchisees have recently filed opposition to the legal split from their franchisor. She also litigated on behalf of a franchisees association, but the judge declared this association inadmissible in its claims. What went wrong?

This procedure concerned the following.

Eye Wish Opticiens’ franchisor, Brilmij, plans to divest 142 Eye Wish stores in the Netherlands, including Franchise stores. This will be achieved by splitting off and transferring these 142 stores and the Eye Wish brand name to another company.

The background to the demerger is that the European Commission approved in March 2021 that 70% of the shares were acquired by EssilorLuxottica NA in the GrandVision group, to which Brilmij also belongs. For the Netherlands, this approval is subject to the condition that the Eye Wish brand name and 142 stores are divested.

The franchisees’ association (and some franchisees) oppose the split-off, arguing that there is insufficient guarantee in the new company for the fulfillment of Brilmij’s obligations to the 142 Eye Wish stores. They request the court to determine that a guarantee is given in the sense of a group guarantee or a bank guarantee for an amount of € 250,000 per store, a total of € 35,500,000.

With regard to the claims brought on behalf of the franchisees association, the court rules that the conditions of Article 3:305a of the Dutch Civil Code have not been met.

This article sets a number of conditions for filing a claim on behalf of an interest group such as an association, which have not been met by the franchisees’ association. For example, there is no supervisory body and no generally accessible internet page with the information referred to in Section 3:305a of the Dutch Civil Code. The general meeting of members of the franchisees’ association cannot be regarded as a supervisory body. The internet page of the franchise holders’ association (www.eyewishfv.nl) does not meet the requirements, because the website is not accessible to the public (the visitor is immediately asked to log in) and it is therefore impossible to check whether the conditions referred to in Article 3: 305a DCC required information is there. The exception of Article 3:305a paragraph 6 of the Dutch Civil Code does not apply (no legal claim with an idealistic purpose and a very limited financial interest or the nature of the claim is reason to disapply the conditions).

Incidentally, the claims on behalf of the franchisees were also rejected, since it could not be demonstrated that they had a claim against Brilmij at that time.

Conclusion

In short, the franchisees’ association is declared inadmissible, as the formal requirements for admissibility of interest groups such as (franchisees’) associations have not been met, which have been tightened on 1 January 2020 by the introduction of the Collective Action Settlement Act (WAMCA).

The question arises why in this case the franchisees’ association did not choose to represent its supporters, being the Eye Wish franchisees, by means of a power of attorney. After all, in this way it can be prevented that admissibility is tested against the strict requirements of the WAMCA. See, for example , a ruling by the court of Rotterdam from which this follows.

As (the board of a) franchisees association, pay close attention to which legal approach is chosen and discuss with a lawyer which requirements apply and whether there are other options.