Art. 71 BV empowers the Confederation to promote Swiss film production and film culture. This constitutional provision was newly introduced in 1999 and goes beyond the general cultural competence (Message on a new Federal Constitution, BBl 1997 I 284 f.). It grants the Confederation two different competences: the promotion of film production and film culture (paragraph 1) and the regulation of film offerings (paragraph 2).
The concept of film encompasses audiovisual works regardless of the carrier medium (Stöckli, BSK BV, Art. 71 N. 6). The Film Act defines specifically: «a sequence of images or of images and sounds» that are recorded on a carrier and can be presented by technical means (Art. 2 FiG). Advertising films and purely television productions are excluded (Art. 16 FiG).
The promotion competence is designed as a «may provision» — the Confederation need not promote, but may (Stöckli, BSK BV, Art. 71 N. 22). Practice shows: There is no legal entitlement to film promotion (Federal Court judgment 2C_614/2015). Promotion occurs through selective contributions, success premiums and structural aid according to the Film Act (Art. 4–15 FiG).
Specific promotion requirements are strict: For international co-productions, a minimum participation of 20% applies (Federal Administrative Court judgment C-7433/2009). If the Swiss share is below 5% of the total costs, no federal promotion is possible (JAAC 69.107). These percentages derive from the European Convention on Cinematographic Co-production (SR 0.443.2).
Example: A Swiss producer wants to realise a documentary film about alpinism. He can apply for selective promotion from the Federal Office of Culture (Art. 4 FiG). The assessment commission examines quality and cultural significance. With a positive evaluation, he receives a contribution — but only if all procedural rules were observed (JAAC 68.14).
The most recent case law shows: Film series can also be eligible for promotion. The Federal Administrative Court decided in 2024 that documentary film series fundamentally fall under the concept of film (Federal Administrative Court judgment B-5140/2023). A blanket exclusion of series violates the principle of legality.
Art. 71 para. 2 BV enables regulatory measures to promote diversity and quality. The nature of this competence is disputed: While the prevailing opinion assumes a parallel competence between Confederation and cantons, others see a competing federal competence (Stöckli, BSK BV, Art. 71 N. 11, 22).
The cantons remain authorised to promote film despite federal competence. The Bern Administrative Court confirmed in 2015 the admissibility of cantonal cultural promotion for film projects (judgment 100 2014 194). Confederation and cantons may act in parallel, but must proceed in a coordinated manner (Art. 19 FiG).
N. 1 The Confederation's film promotion competence was explicitly enshrined in the Constitution for the first time with the total revision of the Federal Constitution in 1999. Previously, federal film promotion was based on Art. 27ter of the old Federal Constitution (general cultural competence). The Federal Council Message on a new Federal Constitution of 20 November 1996 (BBl 1997 I 1, 284 f.) emphasises that Art. 71 BV establishes a specific promotion competence for film that goes beyond the general cultural competence. The constitutional legislature thereby wanted to recognise the special significance of film as a cultural asset and economic factor.
N. 2 The emergence of this provision must be understood in the context of European film policy. The European Convention on Cinematographic Co-Production (SR 0.443.2) and the EU's audiovisual policy significantly shaped the design of Swiss film promotion. Stöckli (BSK BV, Art. 71 N. 1) points out that the constitutional anchoring also represented a response to the increasing internationalisation of the film market.
N. 3 Art. 71 BV is systematically classified in Section 3 of Title 3 (Confederation, Cantons and Communes) under the competences of the Confederation. The provision forms, together with → Art. 69 BV (Culture) and → Art. 70 BV (Languages), the Confederation's cultural policy sphere of competence. Unlike the general cultural competence under Art. 69 para. 2 BV, which is designed as subsidiary, Art. 71 BV is an autonomous federal competence.
N. 4 The classification of Art. 71 BV as parallel or concurrent competence is disputed in doctrine. The prevailing opinion (Aubert/Mahon, Biaggini, Birchmeier, Geiser/Graber in SG Komm. BV, Art. 71) qualifies it as parallel competence of the Confederation and the cantons. In contrast, the Federal Council (Message BV), Borghi (BV 1874) and Thürer et al. see it as concurrent competence. Stöckli (BSK BV, Art. 71 N. 11) classifies Art. 71 as a special competence provision in the field of culture.
N. 5 The delimitation from other constitutional provisions is significant: → Art. 93 BV (Radio and Television) regulates electronic media, while Art. 71 BV specifically covers film production and film culture. → Art. 103 BV (Structural Policy) may be relevant for the economic aspects of film promotion. The relationship to → Art. 95 para. 1 BV (private economic activity) must be observed in the case of state promotion measures.
#3. Elements of the Offence / Content of the Provision
N. 6 The concept of film in Art. 71 BV is to be understood broadly. Stöckli (BSK BV, Art. 71 N. 6) describes it as audiovisual works regardless of the carrier medium. The concrete implementation is carried out through the Film Act (FiG), which defines films in Art. 2 FiG as "a sequence of images or of images and sounds" that are "recorded on a carrier" and "can be shown by technical means". According to Art. 16 FiG, advertising films, industrial and educational films as well as pure television productions are excluded.
N. 7Film production and film culture (para. 1) are to be understood as complementary concepts. Film production encompasses all phases of making a film from script development through production to post-production. Film culture refers to the mediation, screening, archiving and critical examination of film. Stöckli (BSK BV, Art. 71 N. 7) emphasises that both aspects stand side by side as equals.
N. 8 The promotion competence ("may promote") grants the Confederation discretion. This is not an obligation to promote, but a discretionary provision. The Confederation is free whether and to what extent it makes use of this competence. The prevailing opinion (Stöckli, BSK BV, Art. 71 N. 22) emphasises the subsidiary character of the federal competence (N. 24: "The promotion competence of the Confederation has a subsidiary character").
N. 9Diversity and quality (para. 2) are the central goals of the regulatory competence. Diversity refers to both cultural and linguistic diversity as well as different film genres and formats. The concept of quality is open and encompasses artistic, technical and content-related aspects. Graber (Die "Einverleiherklausel", sic! 2014, 1 ff.) points to the challenges of quality assurance in the digital age.
N. 10 Art. 71 para. 1 BV gives rise to the Confederation's competence to enact promotion measures. These are concretised in the Film Act in the form of selective promotion contributions (Art. 4–8 FiG), success-dependent promotion contributions (Art. 9–12 FiG) and location-based promotion measures (Art. 13–15 FiG). The Federal Supreme Court clarified in Judgment 2C_614/2015 that these are discretionary subsidies without legal entitlement.
N. 11 Art. 71 para. 2 BV empowers the Confederation to take regulatory measures. The type of competence under para. 2 is disputed: Geiser/Graber (SG Komm. BV) and Nobel/Weber (Media Law, 339) see it as exclusive competence, while the Message BV, Biaggini and Borghi (BV 1874) assume concurrent (subsequently derogatory) legislative competence.
N. 12 The promotion measures must observe constitutional limits, particularly → Art. 5 BV (rule of law principle), → Art. 8 BV (legal equality) and → Art. 127 BV (taxation principles). The prohibition of censorship under → Art. 17 para. 2 BV sets limits to content control through promotion criteria (cf. Krüsi, Das Zensurverbot, 2011).
N. 13 The type of federal competence in film promotion is the central point of dispute. The prevailing opinion (Aubert/Mahon, Biaggini, Birchmeier, Geiser/Graber in SG Komm. BV) qualifies it as parallel competence that allows simultaneous activity by the Confederation and cantons. In contrast, the Federal Council (Message BV), Borghi (BV 1874) and Thürer et al. take the view of concurrent competence, where cantons can only act insofar as the Confederation does not make use of its competence.
N. 14 Another point of dispute concerns the scope of quality promotion. While Huster (Die ethische Neutralität des Staates, 2002) calls for restrained state quality assessment, Graber/Hördegen (Filmwirtschaftsrecht, 2005, 350 ff.) advocate for active quality control through differentiated promotion criteria. The Federal Administrative Court held in Judgment B-5140/2023 that blanket exclusions of certain formats (e.g. series) violate the legality principle.
N. 15 The delimitation between film and television production remains disputed. While the older practice (JAAC 60.14) provided for a strict separation, the newer doctrine (Bader/Egloff, AJP 2000, 1396 ff.; Weber/Unternährer/Zulauf, Schweizerisches Filmrecht, 2003) recognises the increasing convergence of media. The question is practically relevant for the applicability of film promotion to streaming productions.
N. 16 When applying for film promotion, the composition of the assessment committees must be observed. JAAC 68.14 makes clear that procedural errors in committee formation can lead to the nullity of recommendations. Compliance with the Ordinance on Commissions (SR 172.31) is mandatory.
N. 17 Special requirements apply to international co-productions. The Federal Administrative Court confirmed in Judgment C-7433/2009 a minimum participation of 20% for official co-productions. According to JAAC 69.107, no promotion is possible with a Swiss share of less than 5% of the total production costs. The European Convention on Cinematographic Co-Production (SR 0.443.2) must be observed.
N. 18Promotion practice develops dynamically. The recent Judgment B-5140/2023 shows that promotion authorities must adapt their practice to changed production and distribution forms. Documentary film series are fundamentally eligible for promotion. The digital transformation of the film market requires flexible interpretation of promotion criteria (cf. Graber, sic! 2014, 1 ff.).
N. 19 In designing cantonal film promotion, the constitutional distribution of competences must be observed. Regardless of the qualification as parallel or concurrent competence, the cantons retain scope for complementary promotion measures. Coordination with federal promotion takes place via Art. 19 FiG. The Administrative Court of Bern confirmed in Judgment 100 2014 194 the admissibility of cantonal cultural promotion for film projects.
The Federal Supreme Court determined that federal film funding constitutes discretionary subsidies without legal entitlement.
No appeal in public law matters is possible for decisions on subsidies without entitlement under Art. 83 lit. k FSCA.
«The Federal Administrative Court points out that there is no entitlement to the support contributions in dispute here. This is correct in view of the wording of Art. 4-8 as well as 13-15 of the Federal Act of 14 December 2001 on Film Production and Film Culture (Film Act, FiA; SR 443.1), Art. 25-27 of the Federal Act of 11 December 2009 on the Promotion of Culture (Cultural Promotion Act, CPA; SR 442.1) as well as Art. 14 of the Ordinance of the FDHA of 20 December 2002 on Film Funding (FFO; SR 443.113).»
Minimum participation of 20% required for German-Swiss co-productions.
Projects with unpaid collaboration contradict the goal of film funding to support the Swiss film industry.
«The agreement between Germany and Switzerland requires a German minimum participation of 20%. A co-production in the ratio of 86% (Switzerland) to 14% (Germany) cannot be officially recognised.»
Federal Council JAAC 69.107 of 13 April 2005
Swiss share under 5% of total production costs excludes federal contribution.
Application of the European Convention on Cinematographic Co-production.
«The expenses planned in Switzerland amount to less than 5% of the total production costs, which is why no contribution can be granted.»
Film funding levies under RTVA apply unreservedly from 1 April 2007 and take precedence over concession provisions.
Television broadcasters are obligated to pay film funding levies, even upon renouncing concessions.
«The Federal Office of Communications (OFCOM) [informed] that this would apply unreservedly from 1 April 2007 and would take precedence over the respective concession provisions.»
FAC Judgment B-5140/2023 of 20 August 2024 (latest case law)
Documentary film series are fundamentally eligible for funding and fall under the film concept of Art. 2 FiA.
Blanket exclusion of series violates the principle of legality and equality.
«Overall, the interpretation of Art. 2 para. 1 FiA and no. 2.1.3.1 Annex 2 FFO shows that the film concept in these provisions does not fundamentally exclude series. If works are excluded from funding merely on the grounds that they are series, the law is thus not (correctly) applied.»
Proper composition of assessment committees is mandatory.
Violations of the Commissions Ordinance render recommendations null and void.
«Recommendations may not be given exclusively and definitively by subcommittees where the rules of the Commissions Ordinance have not been observed.»
Federal Council JAAC 64.43 of 6 December 1999
Negative assessments cannot be upheld in case of procedural errors by the assessment committee.
Reorganisation of the assessment system must be carried out correctly.
«These decisions were based on negative assessments by the specialist committee for feature films that emerged from the former assessment committee (AC) following a reorganisation.»
Commissioned films cannot receive quality premiums.
Film funding should promote independent Swiss film production, not television production.
«Des films réalisés sur commande ne peuvent entrer en ligne de compte pour l'obtention de primes de qualité. La loi sur le cinéma a pour but d'encourager la production cinématographique suisse indépendante et non la télévision.»
Financial assistance for film export is possible to support cultural outreach.
Exploitation of Swiss films falls under Art. 3 FiA.
«To support the cultural outreach, economic capacity, continuity and development capability of independent Swiss film production, the Confederation may grant financial assistance inter alia for the exploitation of Swiss films.»