FQIO

Art. 8 Films of Swiss origin

1 Films of Swiss origin are: a. Swiss films as defined in Article 2 paragraph 2 FiA; b. recognised Swiss-foreign co-productions. 2 Proof of origin is provided by the certificate of origin or the FOC’s recognition of the film concerned as a co-production. 3 In the case of commissioned films (Art. 12), the FOC shall verify and confirm Swiss origin on request. The requirements placed on the production company shall be fulfilled by the executive production company and the remuneration of the company subject to the investment obligation and its rights shall be attributed to it as its own share. The application may be submitted by the company subject to the investment obligation or by the executive production company.

Art. 9 Independent third parties

1 Independent third parties are persons and legal entities that are neither owned nor significantly influenced by, nor have close economic links with companies subject to the investment obligation.

2 Production companies are deemed to be independent third parties if they additionally meet the following requirements: a. They meet the requirements of Article 2 paragraph 2 letter b FiA. b. They are professionally organised. c. They have been producing films in Switzerland for more than two years. d. In the last five years or since their establishment, no more than half of the films that they have made have been films commissioned by a company subject to the investment obligation. 3 If a new production company is established solely for a specific film project, the requirements of paragraph 2 letters c and d do not apply; instead, producers who have several years’ experience of carrying out independent film projects must be responsible for the project.

Art. 10 Eligible expenditure for films

1 The only expenditure that is eligible is that for eligible films under Article 24c paragraphs 1 and 2 letters a–c FiA. 2 If payments are made by a company subject to the investment obligation before the Swiss origin of the film in accordance with Article 8 can be confirmed, the FOC shall on request verify whether these payments are eligible expenses. 3 The FOC shall confirm eligibility if the payments: a. relate to a potentially eligible film; b. are made towards the cost of a screenplay or shooting script written by independent authors residing in Switzerland or of film projects developed by independent directors residing in Switzerland; c. are made to authors, directors or production companies residing or based in Switzerland; and d. are within the customary range for the industry.

Art. 11 Eligible expenditure for acquisition

1 The acquisition fee paid to an independent third party for the use, limited in time and place, of an independently produced film in a company’s own media offer is eligible expenditure.

2 Contractual performance shall be based on a written agreement with the person concerned as the rights holder to the film in question. The agreement may relate to a film that has already been produced or a film that is still to be produced. 3 The licence rights granted must revert to the rights holder after no more than 5 years or if the option of an extension has been agreed, after no more than 15 years.

Art. 12 Eligible expenditure for producing a commissioned film

1 The contribution paid to an independent executive production company to produce a commissioned film and to transfer the exploitation rights is eligible expenditure for the production of a commissioned film.

2 The exploitation rights for uses other than media offers of the company subject to the investment obligation may remain with or be transferred back to the executive production company if the price attributable thereto does not exceed 10 per cent of the production costs.

Art. 13 Eligible expenditure for a co-production

Art. 14 Payments made to authorised collective rights management organisations

1 Payments made to Swiss collective rights management organisations are eligible to the extent that they relate to eligible Swiss films.

2 Payments made to Swiss collective rights management organisations as part of a voluntary collective rights management arrangement, in particular fees for broadcasting rights, are eligible if: a. the collective rights management organisation exercises the rights in accordance with a model contract customary in the industry; and b. the collective rights management organisation bills its services on the basis of a standard tariff.

Art. 15 Expenditure incurred by television services in advertising and marketing films

1 The following are eligible expenditure for advertising and marketing films of Swiss origin or for supporting Switzerland as a location for film production, up to a maximum of 500,000 francs per annum and television programme service:

a. own contributions, in particular providing airtime in the television programme service for advertising an eligible independently produced film; the own contribution must be provided on the basis of an agreement with the independent production company as the rights holder; the agreement may be concluded before or after completion of the film; b. expenditure incurred in producing reviews of new films of Swiss origin in the television programme service and any fees paid for image rights; c. payments to independent film-related organisations, in particular: 1. magazines and electronic media that report regularly on current film production, 2. film archives and institutions that predominantly preserve Swiss films and make such films publicly accessible, 3. film festivals with national appeal, 4. institutions that contribute to basic and continuing education and training in the film-related professions, 5. institutions that advertise the Swiss films and recognised co-productions in Switze

Art. 16 Expenditure for recognised film funding institutions

Art. 17 Recognition of film funding institutions

1 The FOC shall recognise film funding institutions that guarantee in personnel and organisational terms the irreproachable conduct of business, in particular in that they: a. apply quality criteria in selecting the films eligible for funding; b. use a selection process for fundable films that is independent from persons and companies that are associated with companies subject to the investment obligation or that have a personal interest in the matter, in particular because they are involved in a film project that is eligible for selection or may not be impartial in some other way in the selection process; c. use a fair and transparent procedure for awarding funding contributions; and d. provide applicants that are rejected on request with the grounds for the decision so as to enable them to request a review of the decision with regard to an infringement of the law or an incorrect assessment of the factual circumstances. 2 The FOC shall publish the list of recognised institutions on it

Art. 18

1 Expenditure becomes eligible at the time of contractual performance, and in particular the time that payment is made. 2 In the case of own contributions by companies with television services for advertising and marketing films, the time of transmission applies.

Art. 19 Relevant gross revenue

1 The relevant gross revenue of a company subject to the investment obligation is the turnover achieved in Switzerland in any calendar year excluding value added tax (VAT).

2 In the case of companies liable to VAT, the turnover that the company declares to the Federal Tax Administration is taken as the basis. 3 The annual accounts must be submitted to the FOC, together with copies of the VAT returns and any accruals and adjustments in accordance with Article 20.

Art. 20 Assessment of companies with a different main activity

Art. 21 Joint accounting for companies that are economically linked to each other

1 Companies that are economically linked to each other, in particular through a holding structure or through ownership, may request that their respective relevant gross revenues and the expenditure incurred by them be added together. 2 The FOC may make joint accounting dependent on the companies having a joint representative and undertaking to be jointly and severally liable. The joint accounting applies in each case for one investment period.

Art. 22 Register

The FOC shall maintain the public register under Article 24g FiA.

Art. 23 Registration

1 Companies providing television or on-demand services subject to registration must apply to the FOC without having to be requested to do so. 2 The following information must be provided in the application: a. name, address, business objects, registered office and business identification number of the company as well as, for legal entities, the members of the management board; companies that are not based in Switzerland shall provide a postal address in Switzerland; b. the type and number of television or on-demand services; c. the business model; d. the turnovers achieved in the most recent two financial years from television or on-demand services in Switzerland; e. the internet addresses, if applicable; f. if applicable the information required for an exemption under Article 5. 3 Changes in the information specified in paragraph 2 must be reported to the FOC within 30 days without having to be requested to do so. 4 The information mentioned in paragraph 2 letters a–c and e shall be m

Art. 24 Notification of the obligations that apply to the companies registered

1 On registration, the FOC shall establish the statutory obligations that apply to the company concerned, and notify the company of these obligations. 2 If a company does not agree, the FOC shall issue a contestable ruling.

Art. 25 Reporting

Art. 26 Exemptions from reporting

Companies providing on-demand services that are based in a member state of the European Union are exempt from reporting under Article 24h paragraph 1 letter a FiA if the film offer in Switzerland essentially corresponds to the film offer in the country where the service is based.

Art. 27 Reporting of paid on-demand viewings

1 Companies that are subject to the reporting requirement under Article 24i FiA shall report the following information annually by 30 April for each on-demand service for each eligible feature-length film that is viewed on demand:

a. the original title and the title used in Switzerland’s official languages; b. the ISAN numbers; c. the persons primarily responsible for the production, in particular the director, d. the film genre; e. the country of production; f. the language versions in which the film is available; g. the year of production; h. the date on which its own exploitation started; i. the duration in minutes; j. the proprietor/holder of the distribution rights for Switzerland; in particular the licensor; k. the number of paid on-demand viewings. 2 The following need not report their paid on-demand viewings: a. companies that use the identical film catalogue of another company registered with the FOC, where they have reached an agreement on reporting, and provided the other company does in fact report the viewings; b. companies that offer films from programme services of Swiss and foreign television broadcasters in Switzerland with a time-delay.

Art. 28 Annual audit of the investment obligation

1 Based on the reports on the television and on-demand services (Art. 25), the FOC shall calculate the amount invested in the previous year, verify the expenditure incurred and notify the company concerned of the result of its audit. 2 Before issuing a ruling, it shall grant the companies concerned the right to be heard. 3 If the FOC is unable to obtain the information required for the calculation, or cannot do so without incurring disproportionate costs, it may determine the investment amount as it deems appropriate.

Art. 29 Ruling on the subsidiary levy

On expiry of the four-year investment period, the FOC shall rule, if applicable, on a shortfall charge amounting to the difference between the expenditure incurred and the investments due.

Art. 30 Changes within the investment period

1 If the conditions for a company relevant to the investment obligation change significantly within the four-year investment period, in particular due to restructuring, closure, a fall in turnover, or bankruptcy, the company shall prepare an interim account for the FOC without having to be requested to do, attaching the relevant documents. 2 If there is no intention or possibility of dividing or transferring the investment obligation or the eligible expenditure incurred, the ruling on any subsidiary levy due shall be based on an interim account for an accounting period which has been reduced accordingly.

Art. 31 Due date for the subsidiary levy and default interest

1 The subsidiary levy becomes due for payment when the ruling becomes legally binding. 2 Payment shall be made within 30 days from the due date. In special cases the FOC may extend the payment deadline. 3 On expiry of the payment deadline, the FOC shall grant the person liable to pay the levy, in writing or in another form that allows proof by text, an additional period of 20 days to make payment. It shall also notify the person liable to pay the levy that the Federal Finance Administration will be instructed to collect the debt on expiry of the additional period. 4 The person liable to pay the levy shall be deemed to be in default if the additional period is granted. The default interest amounts to five per cent.

Art. 32 Limitation period for the subsidiary levy

1 The subsidiary levy is subject to a limitation period of five years after it becomes due. 2 The limitation period shall be interrupted by any administrative act asserting the claim for the levy from the person liable to pay the levy. 3 The limitation period starts again from the beginning if it is interrupted.