#1. Legislative History
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. It is pointed out in the literature that the constitutional anchoring also represented a response to the increasing internationalisation of the film market.
#2. Systematic Classification
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. One view in the literature 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. Some commentators describe 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. 7 Film 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. It is emphasised in the literature 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 emphasises the subsidiary character of the federal competence (N. 24: "The promotion competence of the Confederation has a subsidiary character").
N. 9 Diversity 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.
#4. Legal Consequences
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).
#5. Points of Dispute
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.
#6. Practice Notes
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. 18 Promotion 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.