Facts
GZO AG is a public limited company headquartered in Wetzikon, whose shares are fully held by the former municipal associations. Its main purpose is to ensure the acute inpatient service mandate of the Canton of Zurich in the Zurich Oberland region, which is why it operates the Wetzikon Hospital and is listed on the cantonal hospital list.
The Governing Council of the Canton of Zurich obliged GZO AG to put out to tender all contracts exceeding the relevant thresholds, as it classified it as a public law institution within the meaning of the Intercantonal Agreement on Public Procurement (IVöB). GZO AG unsuccessfully defended itself against this up to the Federal Supreme Court.
Considerations
The Federal Supreme Court concluded that GZO AG qualifies as a public law institution within the meaning of Art. 8 para. 1 lit. a IVöB. It meets the requirements for this, as it is legally independent and its governing body is appointed by the public sector.
The decisive factor was that GZO AG does not engage in commercial activity within the meaning of the IVöB. Although it is subject to certain competitive elements within the framework of hospital planning and financing, these are not equivalent to the requirements of public procurement law. In particular, the pricing of its services is based on legally defined criteria, without a free…