Franchise Hollandiában: közzététel, hozzájárulási jogok és jóakarat

Franchising in the Netherlands is governed by the Dutch Franchise Act (Wet franchise), in force since 1 January 2021 as Articles 7:911 to 7:922 of the Dutch Civil Code (BW). The franchisor must disclose specified information at least four weeks before the agreement is signed, needs franchisee consent for costly formula changes, and must regulate goodwill in the contract. For franchisees established in the Netherlands these rules are mandatory, whatever law the agreement chooses (Article 7:922 BW); for a franchisee operating abroad, the parties may deviate.

This article is for franchisors entering the Dutch market and for franchisees assessing an offer. For the wider commercial context, see our útmutató a holland üzleti joghoz.

When is an agreement a franchise agreement?

Article 7:911 BW defines a franchise agreement as one in which the franchisor, against payment, grants the franchisee the right and imposes the obligation to operate a franchise formula in the way the franchisor designates. The label the parties use is not decisive.

The franchise formula must in any event include a trade mark, model, trade name, house style or design, and know-how: secret, substantial and identified practical information from the franchisor’s experience. A contract called a licence or partner agreement is still a franchise agreement if it has these features. Neighbouring contracts follow different rules: a commercial agency agreement carries its own statutory protection, and a forgalmazási megállapodás is largely governed by general contract law.

There is no franchise regulator and no register of franchise agreements. The parties enforce the Act themselves through the civil courts or arbitration. The code of the Dutch Franchise Association (Nederlandse Franchise Vereniging) is voluntary and binds only its members.

What must the franchisor disclose before signing?

Under Article 7:913 BW, the franchisor must provide the prospective franchisee in good time with a defined set of information, usually bundled in a pre-contractual information document (PID). It must be provided at least four weeks before the agreement is signed (Article 7:914 BW).

The information includes at least:

• the draft franchise agreement, including annexes;
• the fees, mark-ups and other financial contributions the franchisee must pay, and the investments required;
• how and how often franchisor and franchisees consult, and contact details of any franchisee representative body;
• the extent to which the franchisor may compete with the franchisee, directly or through a derivative formula;
• how the franchisee can access turnover data relating to its business;
• where available and relevant, the franchisor’s financial position and financial data on the intended location, or on comparable outlets with an explanation why they are comparable.

The franchisor must also share any other information it knows or should suspect is relevant to the decision (Article 7:913(4) BW). The information must be provided in a form that remains accessible for future reference (Article 7:917 BW).

What does the four-week standstill period mean?

During the four weeks after disclosure, the franchisor may not change the draft agreement to the franchisee’s detriment, may not conclude the franchise agreement or any inseparably linked agreement, and may not induce payments or investments connected with it (Article 7:914(2) BW). A confidentiality agreement is the only permitted exception.

The standstill does not apply to a subsequent franchise agreement between the same parties for the same formula, including where it is concluded with a subsidiary or group company of the franchisee (Article 7:914(3) BW). A franchisor who shortens the period, or quietly amends the draft during it, exposes the agreement to challenge.

What must the franchisee do itself?

The franchisee also has duties before signing. It must give the franchisor information on its financial position where relevant (Article 7:913(1) BW), and take reasonable measures to avoid signing on the basis of incorrect assumptions (Article 7:915 BW).

In practice this means having the forecast checked by your own accountant, asking for the assumptions behind it, and reading the operations manual. Dutch case law on pre-contractual liability holds a franchisor liable where it supplied a forecast it knew or should have known was unsound. A franchisee who signs without reading the documents will get little sympathy from the court.

What must the franchise agreement contain?

Dutch law leaves most commercial terms to the parties: there is no statutory minimum term, fee structure or renewal right. Two subjects, however, must be regulated in the franchise-megállapodás itself under Article 7:920 BW.

How must goodwill be regulated?

The agreement must state how it is determined whether goodwill exists in the franchisee’s business, how large it is and to what extent it is attributable to the franchisor (Article 7:920(1)(a) BW). It must also state how goodwill reasonably attributable to the franchisee is compensated if the franchisor takes over the business at the end of the agreement, to continue it itself or through a new franchisee.

In a tightly controlled formula, customers are loyal to the brand and the franchisee’s share of goodwill will be modest. In a looser formula, where the franchisee builds its own client base, the reverse is true. A clause stating flatly that no goodwill compensation is ever payable is risky; it must at least be reasoned, and it is tested against the standard of a good franchisor.

When is a post-term non-compete clause valid?

A clause restricting the franchisee after the agreement ends is valid only if five conditions are all met (Article 7:920(2) BW). Under Article 7:922 BW, a clause that does not meet them is void for franchisees in the Netherlands, regardless of the governing law.

• it is in writing;
• it only covers goods or services that compete with those of the franchise;
• it is indispensable to protect know-how transferred by the franchisor;
• it lasts no longer than one year after the end of the agreement;
• its geographical scope is no wider than the area in which the franchisee operated the formula.

A two-year restriction, or one covering the whole country for a single outlet in Utrecht, therefore fails. Employee non-competes follow a separate regime; see our article on versenytilalmi záradékok a holland munkajogban.

When does the franchisor need franchisee consent to change the formula?

Under Article 7:921 BW, the franchisor needs prior consent if it wants to change the formula on the basis of a contractual clause, or to operate a derivative formula, and this requires investments, higher fees, other costs or a foreseeable loss of turnover above a level set in the agreement. If the agreement sets no such level, consent is always required, whatever the amount (Article 7:921(2) BW).

Consent must come from a majority of the franchisees established in the Netherlands that operate the formula, or from each franchisee in the Netherlands affected by the change. Examples are a network-wide store refit, a new point-of-sale system the franchisee must buy, or a new concept with similar recognisable features opening in the franchisee’s area.

A derivative formula (afgeleide formule) is a formula that matches the franchise formula in one or more distinctive features recognisable to the public and is operated by the franchisor directly or through third parties (Article 7:911(2)(b) BW). Franchisors often overlook this when they acquire a similar chain.

What duties apply during the relationship?

Both parties must act as a good franchisor and a good franchisee (Article 7:912 BW). Courts use this standard to test how discretionary powers are used, such as unilateral amendments, supplier choices and targets.

Article 7:916 BW adds concrete duties. The franchisor must inform franchisees in good time about intended contract changes, required investments and a decision to use a derivative formula. Every year it must report to what extent the mark-ups and contributions paid in the previous financial year covered the costs they were meant to cover. Franchisor and franchisee must consult at least once a year (Article 7:916(3) BW). The franchisor must also provide the assistance and support that can reasonably be expected for the formula (Article 7:919 BW).

What does competition law allow?

A franchise agreement is a vertical agreement, caught in principle by Article 101 TFEU and Article 6 of the Dutch Competition Act (Mededingingswet). It is usually exempt under the Vertical Block Exemption Regulation (EU) 2022/720, applicable since 1 June 2022, if neither party’s market share exceeds 30% and the agreement contains no hardcore restriction.

• Resale prices: the franchisor may not fix the franchisee’s sale price or impose a minimum price; maximum and recommended prices are allowed if the franchisee remains free to charge less.
• Terület: an exclusive territory and a ban on active selling into another franchisee’s territory are allowed; a ban on passive sales, including online orders from outside the territory, is not.
• Non-compete: during the term exempted for up to five years; after the term only for one year, limited to the premises and to competing goods, and indispensable to protect know-how.

The Netherlands Authority for Consumers and Markets (ACM) enforces these rules, and the European Commission does so for cross-border cases. A clause that infringes the prohibition is void.

How do you protect the brand and the know-how?

The formula is protected by registered rights and by secrecy. Trade marks are registered either as a Benelux mark with the Benelux Office for Intellectual Property (BOIP) in The Hague or as an EU trade mark with the EUIPO.

A trade name is protected by actual use under the Trade Name Act (Handelsnaamwet), not by registration with the Chamber of Commerce (KVK). Know-how and the operations manual are protected as trade secrets under the Trade Secrets Protection Act (Wet bescherming bedrijfsgeheimen) only if the franchisor takes reasonable steps to keep them secret. Have candidates sign a confidentiality agreement before releasing the PID; Article 7:914(2)(b) BW expressly allows this during the standstill. Our szellemi tulajdon csapat handles filings and enforcement, and our article on az üzleti titkok védelme explains the requirements.

How can a franchise agreement be ended?

A fixed-term agreement runs to its end date and can only be ended early if the contract allows it or if the other party seriously fails to perform. In that case the agreement can be rescinded under Article 6:265 BW, usually after a written notice of default giving a reasonable period to comply.

An agreement for an indefinite period can in principle be terminated by notice. Under Supreme Court (Hoge Raad) case law on long-term contracts, the terminating party may have to observe a reasonable notice period and sometimes offer compensation, even if the contract sets a shorter period. What is reasonable depends on the length of the relationship, the investments made and whether they have been recouped. Our article on felmondási és felmondási idők works through these factors.

At the end, the goodwill clause of Article 7:920 BW applies if the franchisor takes over the business. The licence to use the marks ends, confidential material must be returned, and a valid non-compete runs for at most one year in the franchisee’s own area.

What should you check as a franchisor?

• Is the PID complete under Article 7:913 BW, including location data or data on comparable outlets with an explanation?
• Have you observed the four-week standstill without changing the draft or asking for payments?
• Does the agreement contain a goodwill mechanism and a post-term non-compete that meets all five conditions of Article 7:920(2) BW?
• Have you set a consent threshold for formula changes under Article 7:921 BW?
• Do you send the annual report on contributions and hold the annual consultation (Article 7:916 BW)?
• Are pricing, territory and non-compete clauses within Regulation (EU) 2022/720?

What should you check as a franchisee?

• Did you receive the PID at least four weeks before signing, and was the draft not changed to your detriment?
• Has your own accountant tested the forecast and the assumptions behind it?
• How many outlets closed in recent years, and why?
• Is the goodwill compensation clear, and is any zero-goodwill clause reasoned?
• Does the non-compete exceed one year or your own area?
• Was your consent asked for any costly formula change or derivative formula?

What can we do for you with a franchise agreement?

We advise franchisors entering the Dutch market and franchisees assessing an offer or a dispute; see also our üzleti vitarendezés gyakorlat.

• We review the franchise agreement and PID against Articles 7:911 to 7:922 BW and Regulation (EU) 2022/720.
• We draft goodwill, non-compete and consent clauses that meet the statutory conditions.
• We review your offer within the four-week standstill period and list the points to negotiate.
• We advise on consent procedures for formula changes and derivative formulas.
• We act in disputes about forecasts, fees, goodwill, non-compete clauses and termination.

Összegzésként

• The Dutch Franchise Act (Articles 7:911-7:922 BW) is mandatory for franchisees established in the Netherlands, whatever law applies to the contract.
• The franchisor must disclose specified information at least four weeks before signing, with a standstill during that period.
• The agreement must regulate goodwill; a post-term non-compete is valid only within five strict conditions, including a maximum of one year.
• Costly formula changes and derivative formulas need the consent of franchisees (Article 7:921 BW).
• Competition law prohibits fixing resale prices and banning passive sales.

Gyakran Ismételt Kérdések