Essilux claim rejected: GrandVision is not required to provide access to accounts

The law sets out that a party may demand access to the accounts and documents held by another party, if that party has a legitimate interest in doing so. Of course, this right is not unlimited. At the beginning of this week, the interim relief judge of the Rotterdam District Court ruled against such a claim from the company Essilux in a major case. Mathijs van Riet goes into the legal doctrine and discusses the case.

No disclosures to Essilux

Essilux (in full: Essilorluxottica S.A. a French company) and GrandVision N.V. are both active in the (fashion) eyewear market. Essilux has wanted to take over GrandVision for some time now and is negotiating with the shareholder/parent company of GrandVision for this purpose.

As a result of the COVID-19 pandemic, GrandVision had to take some emergency measures to keep its head above water. For example, GrandVision has had to close stores and lay off staff in several countries. GrandVision applied for additional funding. In Essilux’ view, GrandVision and the shareholder should have informed Essilux accordingly. GrandVision and the shareholder omitted doing so, and subsequently Essilux demanded inspection of the acocunts of both GrandVision and the shareholder.

Inspection of and issue in another party’s accounts

The law sets out that a party may demand access to the accounts and documents held by another party. In summary, this is subject to three legal conditions: (1) the documents must establish a legal relationship involving the applicant, (2) the applicant must have a legitimate interest in inspecting the documents, and (3) the applicant must bear the costs.

Of course, this right is not unlimited. For example, this right may not be used just to gain access to all records and documents held by another person ( fishing expedition). Additionally, in specific cases, the interests of the applicant and the interests of the person /party holding the accounts or documents must be considered.

Essilux claim

In summary proceedings, Essilux claimed a copy of a bulk of the accounts and documents that were located at GrandVision and the shareholder. The reason submitted by Essilux was that the account might be used to demonstrate that GrandVision had breached its obligations. GrandVision defended against this argument by claiming, among other things, that the accounts contained confidential commercial information. Access to the accounts would therefore unreasonably harm GrandVision’s interests.

The Court

As stated above, the Court rejected Essilux’s claim. GrandVision and the shareholder did not have to grant Essilux access to its accounts. The main argument for the Court to rule in favour of GrandVision was that the accounts contained confidential commercial information of GrandVision. According to the Court in preliminary relief proceedings, Essilux could possibly enjoy an unreasonable advantage by gaining access to GrandVision’s accounts – after all, GrandVision is a competitor of Essilux. Furthermore, the Court in preliminary relief proceedings also took into account that it was too difficult to determine in preliminary relief proceedings whether GrandVision had breached its obligations towards Essilux in view of the COVID-19 pandemic.

Strict requirements weigh heavily

It can be very useful to demand access to another person’s records or documents. Especially if there is a suspicion that this information can be helpful in a procedure. Nevertheless, such disclosures are subject to strict requirements regulating access to the accounts and documents. Furthermore, several relevant facts and circumstances may play a role for the Court in ruling to grant or reject a claim for inspection of the accounts.

Do you have any questions about the possibility of claiming access to another party’s accounts and documents? Then feel free to contact AMS Advocaten!