Facts
Company X. SA (the defendant, the appellant) and company Y. AG (the plaintiff, the respondent) are both active in the field of industrial waste disposal. They connect Swiss waste producers or waste buyers with foreign waste disposal companies and obtain the necessary permits. On 19 May 2003, the parties concluded a collaboration contract in the form of a consortium for the disposal of automotive industry waste, referred to as "Resh". According to this contract, the plaintiff was to transfer the execution of its activities to the defendant, who undertook to pay the plaintiff a fee of CHF 20 per tonne of Resh invoiced to clients. On 1 September 2004, the plaintiff filed a civil action in the canton of Basel-Stadt, in particular to obtain an order that the defendant be required to account for the quantities of Resh invoiced to clients from 1 June 2003 to 31 July 2004 and to pay the plaintiff the fee of CHF 20 per tonne. The defendant requested the dismissal of the claim, arguing that the consortium contract was void due to an unlawful agreement within the meaning of the Cartel Act (CartA). The civil court granted the request for an accounting and ordered the defendant to pay the plaintiff CHF 310,562.25 plus 5% interest from the filing of the claim. The Court of Appeal of the canton of Basel-Stadt upheld this judgment.Considerations
The Federal Tribunal considers that if the consortium contract were to be qualified as an unlawful agreement within the meaning of Art. 5 CartA, it would be void under Art. 20 CO. However, the nullity does not automatically preclude the possibility of claiming reimbursement of services already provided. Indeed, when the defect does not concern the synallagmatic nature of the agreement, the services or abstentions that have been performed under the void contract must be reimbursed on the basis of unjust enrichment, according to the subjective evaluation of the parties.
As for Art. 66…