Federal Act on Film Production and Film Culture (Film Act, FiA)

The Federal Assembly of the Swiss Confederation,

based on the Articles 71 and 93 of the Federal Constitution ¹ ,
and having considered the Federal Council Dispatch dated 18 September 2000 ² ,

decrees:

Chapter 1 General Provisions

Art. 1 Aim

This Act is intended to promote the diversity and quality of the films on offer and the creation of films and to aid the development of film culture.

Art. 2 Definitions

A film is defined as any sequence of structured images, with or without a soundtrack, intended for reproduction, which when viewed, gives the impression of movement, irrespective of the technical procedure for shooting, recording or playback chosen.

A Swiss film is defined as a film that:

has to a substantial extent been created by an author of Swiss nationality or who is domiciled in Switzerland;
has been produced by a natural person who is domiciled in Switzerland or a company with registered office in Switzerland in which the equity and borrowed capital as well as the management is predominantly held and controlled respectively by persons with domicile in Switzerland; and
which was produced, insofar as possible, using performers and technicians who are of Swiss nationality or domiciled in Switzerland and by technical cinematographic companies in Switzerland.

Chapter 2 Film Promotion

Section 1 Promotion Areas

Art. 3 Swiss film production

The Confederation supports the cultural dissemination, the economic viability, the continuity and the development potential of the independent Swiss film industry. To this end, it may provide financial assistance and other forms of support for the development of projects as well as for the production and exploitation of:

Swiss films;
films co-produced by Switzerland and other countries.

Art. 4 Diversity and quality of the films on offer

In order to promote the cultural and linguistic diversity and the quality of the films on offer, the Confederation may provide financial assistance and other forms of support, in particular for distribution, public screening and sales.

Art. 5 Film culture

The Confederation may provide financial assistance and other forms of support for:

the dissemination of film culture and for increasing film awareness;
film festivals that make a significant contribution to the national or international film culture;
the archiving and restoration of films;
cooperation among the various sectors of the film industry;
further institutions and efforts that make a significant contribution to the maintenance and development of film production and film culture in Switzerland as well as innovation in these fields;
international cooperation in the film sector.

Art. 6³ Continuing education and training

The Confederation may provide financial assistance and other forms of support for the continuing education and training of persons working in the film industry.

Section 2 Promotion Instruments

Art. 7 Awards

The Confederation may reward outstanding contributions to film production and film culture by awarding prizes or other distinctions.

Art. 8⁵ Film promotion⁴

Financial assistance is provided:

according to criteria related to quality (selective promotion);
according to criteria related to success (success-linked promotion);
according to criteria related to location (location-linked promotion); or
according to the contribution made to the diversity and quality of the films on offer in all parts of the country (diversity promotion).⁶

The Federal Department of Home Affairs (FDHA) determines the requirements, in particular the reinvestment obligations, and the procedure.

Art. 9 Delegation of film promotion to institutions

The Confederation may delegate film promotion in a particular field to a private organisation provided third parties make an important contribution to such promotion.

The Federal Council decides on the principle of delegation on a case-to-case basis. The FDHA ⁷ determines the general conditions and appoints the representatives of the Confederation.

The Confederation shall enter into a service agreement with the organisation in order to regulate the mutual obligations. The service agreement provides for a court of arbitration that decides, without right of appeal, on disputes between the organisation and entitled parties.

Art. 10 Service agreements

The Confederation may enter into service agreements with legal entities that regularly receive financial assistance.

Recurring operating contributions to profit-oriented companies are excluded. ⁸

Section 3 Promotion Concepts and Assessment

Art. 11 Promotion concepts

The FDHA regulates the organisation of film promotion through promotion concepts.

The promotion concepts are issued for the individual promotion areas in accordance with Articles 3–6 as well as for awards in accordance with Article 7. They define the goals that should be achieved, designate the promotion instruments and determine the decisive criteria.

The promotion concepts issued have a period of validity of from three to five years.

Art. 12 Assessment

The appropriateness and effectiveness of the promotion concepts and the promotion instruments are assessed regularly.

The results of the assessment are made public.

The FDHA regulates the assessment procedure.

Section 4 Financial Assistance and other Forms of Support

Art. 13⁹ Forms of financial assistance

Financial assistance shall be provided within the limits of the authorised credits in the form of non-repayable cash payments, deficit guarantees, interest subsidies, payments in kind or conditionally repayable loans. ¹⁰

Support may also be provided in the form of advice or recommendations and by issuing letters of comfort or providing other services in kind.

Art. 14 Decisions on financial assistance and other forms of support

Financial assistance and other forms of support are awarded by the Federal Office of Culture (FOC) ¹¹ .

If the FOC does not have the required technical knowledge, it shall have the applications assessed by technical committees or specially instructed experts.

… ¹²

Art. 15 Provision and allocation of resources

The financing of film promotion is governed by Article 27 of the Culture Promotion Act of 11 December 2009 ^¹³ . ¹⁴

Income from the tax on the promotion of the diversity of films on offer, contributions from broadcasting organisations and online film providers as well as any payments and benefits from third parties are included in the financial budget. Intended uses purposes:

Tasks in accordance with Articles 3–6;
Tasks in connection with the collection of the tax;
Tasks in connection with the enforcement of Chapter 3a.¹⁵

The FOC shall allocate the available resources annually to the promotion areas in accordance with Articles 3–6. In doing so it takes account of the promotion concepts and stipulates the maximum amounts of assistance that may be awarded to any individual project in each promotion area.

Section 5 Exclusion from Film Promotion

Art. 16

No financial assistance is awarded to:

advertising films;
films that are primarily educational in their objective;
films that produced to order.

Films that are completely excluded from film promotion measures include films:

that offend human dignity;
that portray members of either sex of a specific group in a degrading manner;
that glorify or trivialise violence;
that are pornographic in character.

Chapter 3 Provisions on the Promotion of the Diversity of Films intended for Public Screening

Section 1 Measures to promote the Diversity of the Films on offer

Art. 17 Principles

Distribution and projection companies must contribute in their activities to the diversity of films on offer by means of:

their business policy;
measures agreed within the industry.

The measures include agreements in which distribution and projection companies or their professional associations undertake to organise the programming for a cinema region to provide as much diversity and quality as possible.

Before entering into an agreement within the industry, the associations involved shall consult the FDHA on the measures planned to promote the diversity of the films on offer and linguistic diversity.

Art. 18 Diversity of films on offer

The diversity of films on offer in a cinema region is guaranteed if the films on offer, given the number of screens used and the size of the cinema region, originate in sufficient numbers from a variety of countries, are of a variety of genres and represent a variety of film styles.

Art. 19 Linguistic diversity

Films subsidised by the Confederation must be made available in more than one national language.

A company may distribute a title for its first public showing in the cinema or for other uses of the work only if it holds the rights for the whole of Switzerland to all language versions that are available for exploitation in Switzerland. ¹⁶

The foregoing does not apply to exploitation by broadcasting organisations in programme services under Article 2 letter a of the Federal Act of 24 March 2006 ^¹⁷ on Radio and Television. ¹⁸

Art. 19a¹⁹ Access to film heritage

Films supported by the Confederation are deposited with the «Cinémathèque Suisse» foundation.

They can be made accessible to the public five years after their release.

Art. 20 Assessment and re-establishment of diversity

The FOC shall regularly assess the effect of the activities and measures in accordance with Article 17 on the basis of the information received in terms of Article 24 periodically. It shall publish the results of the assessment and allows the industry, and in particular the promotion organisations that are party to agreements in terms of Article 17 paragraph 3, the opportunity to state its views.

If the FOC establishes in the course of the assessment that the diversity of films on offer in a cinema region is inadequate, it shall require the distribution and projection companies concerned to take measures within a reasonable time to re-establish the diversity of films.

In relation to distribution and projection companies that have entered into an agreement in terms of Article 17 paragraph 3, the instructions are issued to the promotion organisation. This shall take the required measures independently in order to re-establish the diversity of films on offer within a reasonable time.

Section 2 Tax for the Promotion of Diversity

Art. 21 Tax

If the position required by the law is not re-established within a reasonable time, the Confederation may levy a tax. The FDHA decides on whether the tax is levied after hearing the parties concerned and the Film Commission (Art. 25).

The rate of tax is a maximum of 2 francs per admission, and is levied on the admissions achieved by the distribution and projection companies concerned in a cinema region. These companies, subject to the provisions of Article 22, each pay one half of the tax.

After deduction of the costs of implementation, the income from the tax is used to promote the diversity of films on offer in the distribution sector and in public projection in the cinema region concerned.

The tax may be levied for as long as is required to re-establish the position required by the law.

Art. 22 Exemptions from the tax

Distribution and projection companies may secure exemption from payment of the tax by making a formal undertaking to the Confederation to make a special contribution to the diversity and quality of the films on offer in a cinema region.

In the event of wilful non-compliance with the undertaking in terms of paragraph 1, the tax becomes due for payment without any further formalities.

Section 3 Registration and Reporting Requirements

Art. 23 Registration requirement

Whoever on a professional basis screens films in public or distributes films intended to be screened in public must be registered in a public federal register before engaging in their activity.

In order to be able to register, it is necessary to be domiciled or to have one’s head office in Switzerland.

In order for a legal entity to be able to register, the members of its senior management must be domiciled in Switzerland. Notice must be given to the FOC of any change occurring in the members of the senior management.

Art. 24 Reporting requirements

… ²⁰

The distribution companies must submit a report every month on titles of the films distributed, the places of screening, the screens on which they are projected and the number of admissions attained (cinema attendance).

The projection companies in the key towns submit a report every week, and other projection companies every month, on the titles screened, the screens on which they are projected and the admissions achieved per title and per screen.

… ²¹

The reports are made to the Confederation or to an organisation recognised by the Confederation.

The data referred to in paragraphs 2, 3 and 3 ^bis shall be published regularly. ²²

Chapter 3a Regulations on Promoting the Diversity of the Films on Offer outside Cinemas

Section 1 Diversity of Films on Offer

Art. 24a

Companies that offer films in Switzerland via electronic on-demand or subscription services must ensure that at least 30 per cent of the films are European films and that these films are specifically labelled and easy to find in order to promote diversity.

The obligation under paragraph 1 also applies to companies that are domiciled abroad and target the Swiss public.

The Federal Council shall exempt companies from the obligation under paragraph 1 if:

they do not achieve a certain minimum turnover;
they only offer films occasionally; or
the obligation appears disproportionate or impossible to comply with, in particular because of the type of films offered, the thematic focus of the offer or because third-party offers are featured unchanged.

Section 2 Consideration of Independent Swiss Film Production

Art. 24b Principles

Companies that show films in their programme services in Switzerland or offer them via electronic on-demand or subscription services must invest at least 4 per cent of their gross revenues annually in independent Swiss film production or pay a corresponding compensation tax. A compensation tax shall be due if the investment obligation is not met on average over a period of four years .

The obligation under paragraph 1 also applies to companies that have their registered office abroad and target the Swiss public.

This section does not apply to the Swiss Broadcasting Corporation (SRG).

Four years after this provision comes into force, the Federal Council shall submit a report on the revenue under the investment obligation and the compensation tax in accordance with paragraphs 1 and 2 and on the effects of these investments and taxes on Swiss film production and the companies subject to the investment and tax obligation.

Art. 24c Expenditure taken into account

Expenditure on the acquisition, production or co-production of Swiss films and recognised Swiss-foreign co-productions that are paid to third parties independent of the client. The term «film» is defined in Article 2.

Expenditure on:

the acquisition of the exploitation rights for their own offer from the rights holders and remuneration for the use of films in accordance with the Copyright Act of 9 October 1992²³ paid to the authorised collecting societies;
the production of commissioned films;
the production or co-production of Swiss films as well as co-productions under an international agreement;
the advertising and promotion of films of Swiss origin or the strengthening of Switzerland as a film location, up to a maximum of CHF 500,000 per year and television programme service;
film promotion institutions recognised by the FOC.

Any cultural and film promotion subsidies from the Confederation, the cantons or communes or from institutions that are mainly supported by them or financed by public taxes.

Art. 24d Gross revenue

In the case of companies domiciled abroad, only the gross revenue accruing from Switzerland is relevant.

In the case of companies that operate networks, only the gross revenue from the film service is relevant.

Art. 24e Procedure

The Federal Council shall regulate the procedure for determining and collecting the compensation tax and for cooperation with the domestic and foreign authorities. In doing so, it shall take into account the legitimate interests of the companies concerned in the protection of their business secrets.

Companies are exempt from the obligation to take independent Swiss film production into account if:

they do not achieve a certain minimum turnover;
they only offer films occasionally; or
the obligation appears disproportionate or impossible to comply with, in particular considering the type of films offered or the thematic focus of the offer, due to the limited reach of the television programme services or because third-party programme services or offers are featured unchanged.

Art. 24f Administrative assistance

Swiss authorities shall provide the FOC free of charge with data that may be relevant for the implementation of this Chapter. The data shall be made available individually, on lists or on electronic data carriers.

Section 3 Registration, Reporting and Notification Requirements

Art. 24g Registration requirement

Companies that show films in their programme services in Switzerland or offer them via electronic on-demand or subscription services must register in a public federal register.

If a company is not entered in the Federal Commercial Register, it must indicate a domicile for service in Switzerland in the register in accordance with paragraph 1 and the persons responsible must be named.

Changes must be reported to the FOC without delay.

Art. 24h Reporting requirements

The companies mentioned in Article 24g paragraph 1 must annually:

submit a report to the FOC stating whether and how the obligations under Article 24a paragraph 1 are fulfilled;
report the information necessary to the FOC for monitoring the obligation under Article 24b, namely the gross revenue they have generated and the expenditure claimed for the acquisition, production or co-production of Swiss films and recognised Swiss-foreign co-productions.

Companies that are exempt under Article 24a paragraph 3 or 24e paragraph 2 shall report if the circumstances relevant to their exemption have changed.

Art. 24i Notification requirement

Companies that offer films in Switzerland for a fee via electronic on-demand or subscription services must notify the Confederation of the number of requests per film title.

The data shall be published periodically.

Chapter 4 Commissions

Art. 25 Federal Film Commission

The Federal Council shall establish a Federal Film Commission («the Film Commission»), which advises the authorities on all important issues relating to film culture, film policy and the implementation of this Act.

The Film Commission must in particular be consulted:

on the provisions for the implementation of this Act, the promotion concepts and the distribution plans;
on the assessment of the promotion concepts and promotion instruments;
on the results of the assessment of the diversity of films on offer and linguistic diversity.

The Federal Council determines the composition of the Film Commission. It appoints its chairperson and its members.

The FDHA regulates the organisation and procedure. It may establish committees from the Film Commission and delegate specific tasks to them.

Art. 26²⁴ Technical committees

Technical committees shall be appointed to assess applications for promotion assistance.

The FDHA shall regulate their organisation and the procedure.

Chapter 5 Criminal Provisions

Art. 27 Infringement of the registration requirement

Any person who wilfully fails to comply with the registration requirement in Article 23 paragraphs 2 and 3 or 24 g paragraphs 1 and 2 shall be liable to a fine. ²⁵

If the infringement is repeated, the penalty is a fine of up to 20,000 francs.

Art. 28 Infringement of the reporting and notification requirements

Any person who as a member of the senior management of a company subject to the reporting and notification requirements fails despite receiving a reminder to provide the information due in terms of Article 24 paragraphs 2 and 3, 24 h or 24 i paragraph 1 or who wilfully provides false information shall be liable to a fine. ²⁶

If the infringement is repeated, the penalty is a fine of up to 20,000 francs.

Art. 29 Infringement of the provision on linguistic diversity

Any person who wilfully distributes for first showing a title to which a registered company has already acquired the rights for the same exhibition sector (Art. 19 para. 2) shall be liable to a fine.

If the infringement is repeated, the penalty is a fine of up to 100,000 francs.

Art. 30 Infringement of the provisions on the tax

Any person who wilfully evades payment of a tax in terms of Article 21 or who secures for himself or another an unlawful tax advantage shall be liable to a fine of up to three times the amount of the tax evaded or of the advantage.

If the offence is committed through negligence, the penalty is a fine of up to the amount of the tax evaded or of the advantage.

If it is not possible to ascertain the precise amount of the tax in figures, it is estimated.

An attempt to secure an unlawful tax advantage for oneself or for another is a criminal offence.

Art. 31 Responsibility for prosecution

The Federal Act of 22 March 1974 ²⁷ on Administrative Criminal Law applies in relation to the prosecution and judgement of the offence.

The federal administrative authority responsible for prosecution and judgement is the FDHA.

Chapter 6 Procedure and International Cooperation

Art. 32²⁸ Procedure and legal remedies

The procedure and the legal remedies are governed by the general provisions on the administration of federal justice.

… ²⁹

In appeal proceedings against decisions on financial assistance, the complaint of unreasonableness is not permitted.

Art. 33 International cooperation

In order to promote international relations in the cinematographic sector, the Federal Council may enter into contracts under international law and private law, in particular in relation to:

co-productions;
financial participation in international productions;
the promotion of films;
cultural efforts in the cinematographic sector;
financial participation in international promotion measures;
³⁰ administrative cooperation, data protection and the allowability of financial contributions and taxes in connection with cross-border activities.

Chapter 7 Final Provisions

Art. 34 Implementation

The Federal Council shall enact the implementation provisions unless this Act designates a different authority.

The Federal Council may delegate individual implementation tasks to private organisations.

Art. 35 Repeal of current law

The Federal Act of 28 September 1962 ³¹ on the Film Industry is repealed.

Art. 36 Amendment of current legislation

The following enactments are amended as follows: … ³²

Art. 37 Referendum and commencement

This Act is subject to an optional referendum.

The Federal Council determines the commencement date. Commencement date: 1 August 2002 ³³