The German film industry can look forward

Cinema operators must continue to pay the special levy for the promotion of the German film industry. Their constitutional complaint against the Film Promotion Act was unsuccessful and was dismissed by the Federal Constitutional Court (BVerfG).

In accordance with the Filmförderungsgesetz, the Federal Government promotes the German film industry and the creative and artistic quality of German film as a prerequisite for its success at home and abroad. In particular, the production, distribution and exhibition of eligible films are promoted. The promotion is financed by a film levy paid by cinema operators, holders of rights in the video industry and broadcasting companies, for which there is a statutory obligation to pay the levy.

Cinema operators have objected to this special levy on the grounds that cinema operators have no interest in promoting German films. Their interest is rather in the commercial success of films, regardless of their origin.

Decision of the court:

The Federal Constitutional Court (BVerfG) dismissed the constitutional complaints by judgment of 28.01.2014 (Az. 2 BvR 1561-1564/12).

Cinema operators, holders of rights in the video industry and broadcasting companies form as domestic marketers of German films a homogeneous group whose common interest in the film industry gives rise to a responsibility to finance, according to the court. The objection raised by cinema operators in connection with commercial film success does not prevail. In the dispute year 2004, the market share of German films amounted to 23.8 %. The cinema industry could not demonstrate its economic interest in German films more clearly.

The non-inclusion of overseas marketing does not preclude the obligation to pay the levy. This is justified by the fact that such a payment obligation would conflict with the primary objective of promotion, namely a successful marketing of German films abroad.

The court also dealt with the Federal Government's legislative competence, as this was repeatedly questioned in connection with the Filmfördergesetz on account of the cultural sovereignty of the Länder. The court justified the Federal Government's legislative competence on the basis that the focus of the regulation lies in the economic rather than the cultural sphere. It is not prohibited for the Federal Government, in the exercise of all its competences, to also take account of the preservation, protection and promotion of culture.

Conclusion

Accordingly, German cinema operators must continue to pay a special levy, regardless of whether they have an interest in promoting German films or not.

According to SPIO, the market share of German films in 2012 was 18.1 % based on 135.1 million cinema visits. Accordingly, German cinema operators should also benefit from film promotion.