Statement Of Preliminary Issues Released For Anytime NZ Limited Collaborative Activity Clearance Application

The Commerce Commission has published a Statement of Preliminary Issues relating to the application from Anytime NZ Limited (Anytime NZ) seeking clearance under section 65A of the Commerce Act 1986 for proposed agreements with its franchisees.

The proposed agreements contain standardised pricing provisions. Anytime NZ considers that the standardised pricing provisions are or may be cartel provisions, but that they are reasonably necessary for a collaborative activity and the proposed agreements would not substantially lessen competition.

The statement outlines the key competition issues that the Commission considers important in deciding whether or not to grant clearance to the proposed agreements.

The Commission invites interested parties to provide comments on the competition issues relevant to the proposed agreements. Submissions can be sent by email to registrar@comcom.govt.nz with the reference “Anytime Fitness” in the subject line. Any submissions should be received by close of business on 15 October 2021.

The Commission is currently scheduled to make a decision on the application by 3 November 2021. However, this date may be extended as the investigation progresses.

The Statement of Preliminary Issues and a public version of the application can be found on the Commission’s case register.

Background
The Commission will give clearance to a prospective agreement containing a cartel provision if it is satisfied that:

• the applicant and any other party to the proposed contract, arrangement, or understanding are or will be involved in a collaborative activity; and
• every cartel provision in the contract, arrangement, or understanding is reasonably necessary for the purpose of the collaborative activity; and
• entering into the contract or arrangement, or arriving at the understanding, or giving effect to any provision of the contract, arrangement, or understanding, will not have, or be likely to have, the effect of substantially lessening competition in a market.

To be engaged in a collaborative activity two or more parties must:

• be carrying on an enterprise, venture, or other activity, in trade in cooperation; and
• not be doing so for the dominant purpose of lessening competition between them (or any two of them).

Further information explaining how the Commission assesses a collaborative activity clearance application is available on our website

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