The Arnhem-Leeuwarden Court of Appeal ruled on 15 May 2018, ECLI:NL:GHARL:2018:4395, on whether a franchisor was allowed to open a branch just over the edge of the exclusively granted protection area. 

In the franchise agreement it was agreed that the franchisee will be allocated an area with a radius of 300 meters around the location. No other branch of the franchisor would be located in this area. 

The franchisee complains that the franchisor did not indicate when the agreement was concluded that another branch of the franchisor would be opened 380 meters from the franchisee’s business. The franchisee has argued, among other things, that with the location on the edge of the exclusivity area there are competitive activities that would depress profitability. The franchisor is thus charged with an unlawful act for breach of the franchisor’s pre-contractual information obligation. 

According to the court, the franchisee had not fulfilled its duty to state that it would not be (properly) possible to operate two profitable branches at a distance of 380 meters from each other in the center of Almere. The Court of Appeal follows the opinion of the District Court that the franchisee has insufficiently substantiated its assertions by not providing information about the turnover it has realized and about the expectations it may have had in view of the turnover figures provided to it. 

mr. AW Dolphijn – franchise lawyer 

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