Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC and domestic law shall apply. Taking into account that franchisor shall have very often access to the personal data of franchisee’s employees or end customers purchasing products/services at the franchisees’ retail shops/outlets, in the franchising agreement or in other agreement related to the franchising agreement the parties establish rules relating to the processing of such personal data.
In general, the transfer of the rights arising out of the contract requires the consent of the other party thereto (only the transfer of the receivables is permitted without consent, if the contract does not provide otherwise). It means that there is no need to provide in the franchise agreement concluded under the Polish law a ban on the transfer of franchise. Since the franchise is not regulated by the Polish civil law, there are no any particular rules regarding the ability of a franchisor to control or restrict transfers of stock/equity in a franchisee entity as well as transfers rights and obligation established in the franchise agreement, in whole or in part, shall apply.
The ability to control the transfers of an indirect interest in a franchisee depends on the type of the interest being subject of the transfer. The effectiveness of the restriction referring to the transfer of the ownership interests in an entity, which is franchisee, depends on the legal form of the latter. For instance, the restriction of the transfer of shares in the limited liability company (which is the most popular form of conducting business in Poland) has to be provided for in the articles of association of the company, unless it is not effective. The effectiveness of the transfer may also require additional statements or consents.
However, there are situations, where the rights and duties provided in the franchise agreement are transferred automatically on the third person: the Polish Commercial Companies Code provides for the universal succession after the acquisition of the company. While the company (franchisee) is acquired by another company, the latter steps into all rights and duties of the company being acquired automatically and the franchisor cannot oppose it. This means that the provision of a franchise agreement prohibiting the transfer of all or part of the ownership of the franchisee or the franchisee business to a third party, could be ineffective. Instead of the ban on transfer, the agreement may provide that it automatically expires provided that some circumstances (such as transfer of particular franchisee rights or business) appear.
The franchisee agreement may reserve the pre-emptive right or the right of priority to purchase a franchisee business by the franchisor, but unless the franchisee notifies the franchisor on the sale contrary to the terms of the franchise agreement, the franchisee is only liable for damages and the sale made in breach of the franchise agreement (and the pre-emptive right) is effective.
Therefore, the detailed provisions in this respect should be included in the franchise agreement and, depending on the type of restriction, also in other documents.