Statement Of Unresolved Issues Released For Anytime NZ Limited’s Collaborative Activity Clearance Application

The Commerce Commission has published a Statement of Unresolved Issues relating to the application by Anytime NZ Limited (Anytime NZ) for clearance under section 65A of the Commerce Act 1986 for proposed agreements with its franchisees. The proposed agreements contain standardised pricing provisions, which Anytime NZ considers are or may be cartel provisions, but which are reasonably necessary for a collaborative activity. Anytime NZ also considers that the proposed agreements would not substantially lessen competition.

The Statement of Unresolved Issues sets out the potential issues that the Commission has with the proposed agreements. A Statement of Unresolved Issues is not a final decision and does not mean that the Commission intends to clear or decline the proposed agreements.

The Commission is seeking submissions from Anytime NZ and other interested parties on the issues raised in the Statement of Unresolved Issues. Submissions can be sent by email to registrar@comcom.govt.nz with the reference “Anytime Fitness” in the subject line. Submissions are due no later than close of business on 2 May 2022.

The Commission is currently scheduled to make a decision on the application by 27 May 2022. However, this date may be extended.

The Statement of Unresolved Issues can be found on the Commission’s case register.

Background
The Commission will give collaborative activity 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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