The Zurich Administrative Court has also ruled that cinemas showing blockbuster films were also affected by the pandemic measures.
The court accuses the canton of operating a “selective cultural promotion” in the cinemas.
Cinema is not just cinema. At least that’s what the Zurich culture department thinks. For them, mainstream cinemas, in which blockbusters like James Bond or superhero flicks from Marvel are shown, “do not make a substantial contribution to the variety of offers and programs”. With this reason, the specialist department last year refused two commercial cinema operators compensation for loss that they had applied for due to the state-imposed corona restrictions.
As it turns out, she was wrong. In two recently published judgments, the Zurich Administrative Court spoke plainly: the measures to combat the pandemic would have affected cultural companies, regardless of whether their offer was able to assert itself on the market or required state funding. The distinction between culturally valuable art house cinemas and commercial mainstream cinemas is not tenable for the court.
The complaints of the two cinemas, which are not named in the judgments, are partially approved. In one case, the operator applied for compensation of 430,000 francs, in the other it was about 2.5 million francs. The judgment in the first case is final, in the second not yet. The canton has the option of contesting the decision before the Federal Supreme Court. According to the answer to a corresponding request, the culture department, which belongs to the judiciary department of government councilor Jacqueline Fehr (SP), is currently dealing with the further procedure.
The subtle difference between arthouse and mainstream
In their complaint, the two cinemas that were victorious in court criticized, among other things, that the canton had violated the principle of equal treatment of competitors. This is because so-called arthouse cinemas, unlike them, have received financial support.
The administrative court went to the trouble of defining the two directions – arthouse and mainstream – more precisely. Arthouse films are artistically demanding auteur films that are “usually aimed at an urban audience”. Mainstream films, on the other hand, served “the so-called mass taste”. They came from large film studios and were aimed at the entertainment needs of a broad audience.
The judges even included social science studies. For example, you can see that visitors to art house cinemas are on average older and more educated. They also went to the cinema more often because of a specific film “and less for social reasons”. They like “tragic romance, political or serious-themed films,” while mainstream cinema audiences like “funny romance, comedy, films with battle scenes or special effects, horror films, and films set in the future or dealing with end-time scenarios.”
Despite this clear distinction, the court concludes that most moviegoers, with their individual tastes, ranked on an axis between the two prototypes of the arthouse and mainstream viewer outlined. “From this point of view, it is not to be assumed that there are two clearly defined groups; on the contrary, overlapping is to be expected.”
In addition, there are partial overlaps in the cinema program. Thus, there is at least partially direct competition among the operators. In principle, however, the authorities must treat competitors equally.
Accusation of “selective cultural promotion”
In summary, it is clear to the court that the extent to which a cultural enterprise was affected by the Corona measures cannot be determined on the basis of characteristics such as artistic standards, quality, originality, genre or the origin of the productions presented. Taking such criteria into account would undermine the legislator’s intention to mitigate the effects of the Corona measures for cultural companies – and not to operate “selective cultural promotion”.