Facts
Corvatsch Power GmbH, which had previously been entrusted with the collection and transport of household waste in the area of the Oberengadin-Bergell Waste Management Association, was awarded the contract for the provision of this service for a period of five years in 2006 based on a new tender. A competitor complained about this award decision, whereupon the association initially only provisionally commissioned Corvatsch Power GmbH to continue the collection service.
After the complaint was dismissed by the Administrative Court, the association sent Corvatsch Power GmbH a draft contract for signature. However, Corvatsch Power GmbH demanded an adjustment of the contract due to an allegedly too high annual waste volume. As the parties could not reach an agreement, the association terminated the verbally agreed extension of the previous contract and instead commissioned another company with the waste collection. Corvatsch Power GmbH then filed a lawsuit.
Considerations
The Federal Court concluded that the disputed contract between the association and Corvatsch Power GmbH is to be classified as a private law contract, as it merely involves the transfer of an ancillary activity for the fulfillment of the public task of waste disposal.
Furthermore, the Federal Court found that no contract had been concluded between the parties. The association's offer was no longer binding after more than two months, and Corvatsch Power GmbH's late acceptance therefore came too late. In addition, Corvatsch Power GmbH had…