The Amsterdam Court of Appeal ruled on June 30, 20202 that a
\n franchisor has no (unlimited) recourse to a contractual agreement
\n competition prohibition. A franchisor who reasonably does not
\n has an interest in invoking a non-competition clause, a former
\n franchisee for violation of such prohibition. <\/p>\n
\n In this matter, a franchise agreement has been established between a
\n former pediatric nurse and a children’s home care formula. At the time
\n of the signing of the agreement there was another
\n franchisee is active, but this is soon afterwards out of the formula
\n stepped. From that moment on, the franchisor has served the Northern Netherlands
\n from its own branch and the franchisee has South Netherlands as
\n her work area. Since the franchisee because of her
\n qualities has grown very fast, her company is even bigger
\n than that of its franchisor. Of a vertical proportion
\n due to the size and layout of the formula at any given time according to it
\n court no longer. Parties are at the end of the
\n contractual term entered into consultation with each other about the cooperation
\n otherwise and to continue working together on an equal footing.
\n The parties have not been able to reach agreement on this. On behalf of the
\n the franchisor has been informed by its lawyer that the franchise agreement
\n would be tacitly renewed and that the former franchisee kept
\n would be to continue paying the franchisor fee. If not already
\n case, the franchisor has summoned the franchisee to do so
\n use of the franchisor’s trade name and is an appeal
\n made on the contractual prohibition of competition, which meant that the
\n franchisee for a period of one year
\n children’s home care organization should strike.
\n \n<\/p>\n
\n At first instance, the court held that between the parties
\n indeed a non-competition would be in force, which the
\n (former) franchisee would have violated. The franchisee is
\n liable for damages to be demonstrated by the franchisor
\n as a result of the violation of this prohibition. On appeal it has
\n However, the Amsterdam Court of Appeal listened to the arguments of the
\n former franchisee and the franchisor’s claims in full
\n turned down. The Court of Appeal followed the franchisee’s argument
\n that the franchisor has not taken any steps to operate
\n enter into the territory of the franchisee, let alone that they
\n demonstrated that a new franchisee would be placed here.
\n In fact, there was no evidence at all for the existence of one
\n franchise organization.
\n \n<\/p>\n
\n The Court of Appeal is of the opinion that the franchisor was unable to do so
\n demonstrate that it has an interest in relying on the contractual
\n non-competition. For that reason, the Court of Appeal has the interest of the
\n former franchisee in continuing its business more heavily
\n weighed. It considers an appeal to a contractual non-competition clause under
\n those circumstances to the standards of reasonableness and fairness
\n unacceptable. The claims of the franchisor are therefore
\n completely rejected.\n<\/p>\n
\n This judgment is in line with previous case law, in which it has been established
\n that invoking a contractual non-competition clause serves to protect the position
\n of a franchise formula. However, since here actually
\n there was no longer a franchise relationship and so did the franchisor
\n has not been able to demonstrate that there was an interest to be protected by law
\n the Court of Appeal has invoked the prohibition of competition in this matter
\n deemed unacceptable.
\n \n<\/p>\n<\/p>\n
<\/p>\n
mr. T. Meijer \u2013 franchise lawyer\n<\/p>\n