The I.C.C.A., Institute of Cinematographic and Audiovisual Arts, created by law 50/1984, dated 30th of September, in its article 90, has its own legal personality and the capacity to act towards the performance of its purposes according to the law, the legal system of the autonomous entities, the general budgetary law and other regulations to apply to autonomous organisations.
Among its functions it is worth mentioning the promotion and ordination of Spanish cinematographic and audiovisual activities in three aspects: production, distribution and exhibition.
Royal Decree 526/2002, dated 14th of June regulates the cinematographic promotion measures, and after it came into effect, the previous regulations were abolished:
Royal Decree 1039/1997, dated 27th of June, combines and harmonises the regulations on cinematographic promotion and incentives and it also dictates the rules of application of the second additional regulations of Law 17/1994, dated 8th of June, later modified by Royal Decree 196/2000, dated 11th of February.
Royal Decree 81/1997, dated 24th of January, Chapter II: “Rules for the production of cinematographic films in co-production”, in which Law 17/1994, dated 8th of June for protection and promotion of cinematography is developed, as well as an update of the norms related to co-production of film, exhibitions rooms and cinematographic films qualification that were later modified by Royal Decree 196/200, dated 11th of February.
Royal Decree 196/2000, dated 11th of February that modifies Royal Decree 81/1997, dated 24th of January and Royal Decree 1039/1997, dated 27th of June to update the regulations related to cinematographic and audiovisual production and diffusion.
Order ECD/2240/2003, dated 22nd of June dictates the norms of application of Royal Decree 526/2002, dated 14th of June that regulates the cinematographic promotion measures and the co-production of films.
Production companies that undertake a cinematographic or photographic work must be in possession of insurance that covers all the production risks in its different stages.
Some of the obligatory insurances are:
– Civil responsibility insurance: a third party insurance that covers all the possible damages in production. It must be valid from the beginning of the production until the end of the post-production work.
– Insurance of any type of material: technical equipments, cameras, sets, clothing, animals…
– Insurance of the negative and recorded materials for possible damages or material loss.
If you are a foreign producer and wish to set up in Spain, there are several options to formalize your situation:
– If the producing company belongs to the European Union, it can establish itself provisionally in Spain after inscribing in the registry office of Hacienda, the tax office, and providing a copy of its articles of association. The company will have to pay the corresponding tax from its benefits in Spain.
– Another option is to open an affiliate office of the company in Spain. The procedures are the same as those of a new company. The representative of the company will have to sign the deed of the society before a notary, request a fiscal identification number, register for taxation purposes corresponding to the activity proposed, and apply for registration with Social Security. From legal, fiscal and financial points of view, the company will be independent, and it will be subject to VAT (IVA).
– The most usual procedure is in fact the association between a foreign producer and a national one, who provides services in exchange for a previously agreed remuneration; otherwise, the national company can establish a co-production system with the foreign one.
CUSTOMS AND TRANSPORT
Productions whose team, either human or technical, come from another country totally or partially, as well as Spanish companies that decide to film abroad, must organise their activity according to the current legislation on transportation and customs. According to legislation, it is not necessary to declare or pay any tax for the transportation of material inside the European Union, due to the abolition of trade barriers among member countries.
Foreign producers that do not belong to the European Union and Spanish producers who wish to film outside theUnion must organise the declarations and tax payments for transportation of material.
The transportation of animals between non-EU countries requires a permit obtained from the Ministry of Agriculture. Alternatively, if transporting between EU countries the permit is provided by the Department of the Environment. This permit is subject to certain restrictions by which all animals must undergo a veterinarian examination, and animals may be quarantined if deemed necessary.
The transportation of cinematographic material, either printed or developed, always requires an exportation process. The film must be forwarded to the country of origin by a simple forwarding regime, even in cases in which it is developed in Spain. When the film is not developed within Spanish territory, the canister must include a notice in English stating “Do Not Open” and “Do Not X-Ray”, in order to avoid damages to the film due to opening or X-ray exposure.
The transportation of material between non-EU countries is governed by the customs convention on the ATA Carnet, a form issued by the Chamber of Commerce and Industry (or its equivalent) of each country; this Carnet allows exportation of audiovisual material temporarily. The amount of the obligatory deposit (by guarantee or bank cheque) is determined by each country.
Countries that require a deposit of 100% of the total cost of the material.
Algeria, Botswana, Croatia, Estonia, India, Israel, Lesotho, Lebanon, Lithuania, Macedonia, Morocco, Namibia, Russia, South Africa, Swaziland, Thailand, Tunisia, Turkey and China.
Countries that require a deposit of 50% of the total cost of the material.
Australia, Bulgaria, Canada, South Korea, Ivory Coast, Slovakia, Slovenia, United States, Gibraltar, Guadalupe, Hong Kong, Hungary, Iceland, Japan, Malaysia, Malta, Martinique, Mauritius, Norway, New Caledonia, New Zealand, Poland, Czech Republic, Romania, Saint Pierre and Miquelon, Senegal, Singapore, Sri Lanka, Switzerland, Tahiti and Cyprus.
The Canaries and Andorra require a deposit of 25% of the total cost of the material with the exception of musical and theatre groups.
Territories not mentioned above do not require any deposit, although it would be convenient to contact the corresponding Consulate to get the appropriate information. Re-importation of the material must be carried out during the validity period of the ATA Carnet.
According to Spanish employment law, each person who works within its territory must, without any exception, be employed or self-employed (freelance). Employment conditions vary depending on whether the person to be employed is a citizen from the European Union.
Every worker, employed or freelance, Spanish or foreign, has to be previously registered with the Social Security before carrying out any work activity. The application form is to be completed by the employer or the freelance worker. Moreover, the employer must inform on all discharges, redundancies and changes of personal details of the workers who are providing a work activity for them.
Any company or businessperson who wishes to develop a work activity must register with the Social Security.
Employment of citizens of the EU: the same procedures as for any Spanish citizen must be followed, according to the free traffic of goods, people, services and capital guaranteed by the EU. In order to be able to sign a standard contract, a foreigner ID number is required (NIE, granted by the Civil Government). In the case of freelance professionals, inter-communitarian bills tend to be used.
Employment of non-European workers: non-Europeans must hand in the documentation needed in the government district offices. The worker will receive an answer within 90 days through their country’s embassy. It must be considered that during this time the worker must not carry out any work activity. Sometimes it is the workers themselves who decide to apply directly for a work permit. This must also be done in the corresponding district office.
The Social Security is a group of Public Administrative Organisations in Spain, which are in charge of guaranteeing the welfare assistance, health and economic well being of Spanish citizens and foreigners living in Spain. Its main standard is compiled in the Social Security General Law, passed by Royal Decree 1/1994, dated 20th June.
Social Security State Secretariat: Social Security National Institute (INSS), Social Security General Treasury (TGSS) and the Navy Social Institute (ISM).
Contribution to the Social Security by all workers and businesses carrying out a working activity is compulsory and this obligation finishes only at the end of the activity.
The tax base is the total amount resulting from applying the rules established by the State General Budgeting Law. There are also other taxable concepts regarding overtime, work accidents, and illness or common contingencies (non-working accidents, retirement, maternity leave or risk during pregnancy).
Spanish Social Security interacts with the other members of the European Union regarding allowances to people from another state member of the EU employed or self-employed, as well as to their family, with the following services:
– Illness and maternity allowance, which refers to health care, temporary disability and maternity.
– Disablement allowance.
– Elderly allowance.
– Survival allowance.
– Work accident and professional illness allowance.
– Death allowance.
– Unemployment allowance.
– Family allowance.
Workers employed by foreign companies in order to carry out the work activity in Spain will be submitted to the Spanish legislation of the Social Security if they lived in Spain before they were employed. These workers are not considered as “transferred” workers. The foreign company is required to apply for a tax account code to the local office of the General Treasury in order to register the company and the worker with the Spanish Social Security.
Spain has signed social security agreements with the following countries: Andorra, Germany, Argentina, Australia,Austria, Belgium, Brazil, Canada, Chile, Denmark, Ecuador, USA, Finland, France, Greece, Holland, Ireland, Italy,Luxemburg, Mexico, Morocco, Panama, Paraguay, Peru, Portugal, UK, Russia, Sweden, Switzerland, Uruguay andVenezuela.
General Regime: must be applied to each Spanish citizen over sixteen and foreigners living in Spain, whatever their gender, marital status or profession, as long as they can be identified as employees in the different branches of the economic activity- including those which are home-based and the seasonal or permanent ones, even the non-continuous activities, regardless of their professional category, form and the quantity of the remuneration received.
Special Regimes: are established for those professional activities in which, due to their nature, particular weather and location conditions or to the type of production processes, this may be necessary for an accurate application of the benefits of the Social Security. These are as follows: workers in the farming, forest and fishing sector, as well as the owners of small exploitations directly and personally cultivated, sea workers, freelance workers (Spanish workers living in Spain or foreigners over eighteen who live or are legally staying in Spain, who are carrying out their working activity on national territory; to these effects, a freelance worker is the person who carries out on a regular basis an economic activity personally and directly with a profitable aim, without being attached to a work contract and despite using remunerated services from other people), civil servants, soldiers, house workers, students, and all other groups named by the Work and Social Security Ministry, as to be considered in need of a special regime.
The Workers’ Statute, Legal Royal Decree 1/1995, dated 24th March, is the law that regulates the relationships between employers and employees a part-time contract being shorter than the services provided during a number of hours per day, per week, per month or per year in a full-time one.
The salary: it is the sum of economic wages that the workers receive either in trade or by cash for their professional work services. The basic pay is what the worker earns for each time or work unit, without taking into account any other circumstances.
The rest of the worker’s economic wages are supplementary or extra payments that can be classified into five different categories:
– Personal (depending on each worker’s personal circumstances that have not been assessed in the basic pay, such as command of another language, academic qualifications, etc.
– Work place: depending on the risks that the work activity involves, such as toxicity, danger or nocturnality.
– Work quality or quantity: given for an increase in work quantity or quality (extra hours, activity allowances, etc.)
– Over a month working periods: these are earnings over a thirty-day period, such as seasonal bonuses or profits from the business earnings, among others.
– In trade: remunerations that the worker receives in the shape of non-economic goods (food, accommodation…)
Apart from these supplementary wage rates, the worker can also receive economic bursaries to cover other expenses during the work activity, such as in advance refund of expenses, transport cost, etc.
The main regulation after the Constitution is the Workers’ Statute (ET, Estatuto de Trabajadores), which was passed on 10th March 1980. It regulates workers’ individual contracts, joint negotiation and the representation of workers in the company. In 1994, the Spanish Government undertook an important reform on work regulations that brought higher work flexibility, improved work mobility and introduced new ways of employment. There are also numerous laws and decrees regulating special employment contracts, training, apprenticeship, high executive, etc.
Both temporary and permanent contracts are of different types.
Temporary contracts of employment:
– Contract for the fulfilment of a specific job or service: its length will be the necessary one required until the job or service ends.
– Temporary contracts due to the circumstances of the production: they are done due to temporary circumstances of the market, such as accumulation of jobs or excess orders. They shall last no longer than six months for every twelve-month period.
– Provisional contract: it is used to replace workers in a company (with the right to keep their post) during a specific period of time or to cover a post temporarily during recruitment process or promotion for its financial coverage.
– Contracts for the launching of a new activity: its duration lasts from a minimum of six months to no more than 3 years.
– Contracts to promote and create employment: the origin of these contracts dates from 1984, when they were created in order to generate a higher number of jobs. Nowadays this regime is established annually, defining what type of workers can be employed under these circumstances.
Another type of employment is part-time contracts, in which the workers render their services during a number of hours daily, monthly, or annually, lower than the usual one that normally takes place within these periods of time. In this case, salaries and contribution to the Social Security will be in proportion to the actual working time. Part time contracts can be permanent or temporary, as long as this modality is legally allowed (Decree 52/1994, dated 4thMarch).
Law article 10/1994, 19th May, Urgent Measures to Promote Occupation, establishes a new regime for training contracts, combining effective work with training. With the new regulation of these contracts there is a reform of the old training contracts and it removes the training contract in order to replace it with an apprenticeship contract.
Training contracts allow companies to employ young people who have just finished their degree and who are keen on acquiring the experience within their area of study in a company. Its length must not be less than six months or longer than two years.
Under the apprenticeship contracts category, young people between 16 and 18 and disabled people who don’t have the qualifications required to formalise a training contract, can be employed in order to get theoretical and practical apprenticeship at the same time as they are rendering their services and getting paid for it. The length of these contracts cannot be less than 6 months or longer than 3 years, unless there is an agreement stating otherwise.
Employment of minors for public shows: in order to contract a young person, it is necessary to send an authorisation from his/her parents or legal tutors to an inspector. The inspector will then be in charge of assessing the working conditions considering the role to be performed by the young person, pay, health and other key factors such as hygiene, security, air condition, resting time, absence from school, parental supervision during shooting time, etc. The application form must be handed in at least one week in advance. The allowed working hours depending on the child’s age are detailed in the following graph. Night work by minors is forbidden and it is only authorised in exceptional cases and within limits (3 nights a week, resting for 16 consecutive hours).
|Under six months oldSix months to two years old
Two to six years old
Six to nine years old
Nine to sixteen years old
Sixteen to eighteen years old
|Two hours on set. Including twenty minutes on camera. *Four hours on set. Including two hours on camera.
Six hours on set. Including three hours on camera.
Eight hours on set. Including four hours on camera.
Nine hours on set. Including five hours on camera.
Ten hours on set. Including six hours on camera. Non school days: eight hours on camera.
*Babies cannot be exposed to more than 100 foot-candle of artificial light for more than thirty seconds each time.
Regarding job seekers allowance and pensions, each person who has contributed to the general regime of the Social Security has the right to receive unemployment benefits and a retirement pension. The length of this allowance depends of the taxpaying periods of time. In the case of a pension, workers have the right to receive it after having been working for at least fifteen years.
During filming, production companies with employees must follow some compulsory security and hygiene regulations. Workers’ insurance companies are in charge of supervising the complying of these regulations. Law article 31/1995, dated 8th November, on Work Risk Assessment, is the legal regulation that establishes the basic core of guarantees and responsibilities necessary in order to acquire an appropriate level of workers’ health protection towards the risks deriving from the working conditions, within a coherent, organised and efficient political frame.
The Spanish Trade Code constitutes the basis of the commercial regulations for Castilla y León, and establishes the structure and operation of the different types of trading companies.
Public Limited Company: It is the main capitalist company. Its founding is based on the partners’ investment, who are not responsible for the companies’ debts and have no right to act as administrators just for being mere partners. It is regulated by the Trade Code and the Public Limited Company law passed by the Royal Decree 1564/1989, dated 22ndDecember, which adapted this regulation to EU guidelines. Public Limited Companies legislation has been recently modified in order to regulate one-partner companies.
Limited Companies: These companies share some of the characteristics of public limited companies and partnership companies. Their partners are not personally responsible for any social debts nor have they the right to take part in the administration of the company just for being mere partners. Limited Companies are ruled by the Trade Code and Law 2/1995, dated 23rd March, on Limited Companies. As is the case of Public Limited Companies, the new legislation regulates one-partner limited companies only.
General Partnership Companies: It is a partnership company whose partners are responsible for the debts of the company personally and unlimitedly. All the partners have the right to participate in the management and administration of the company.
Limited Partnership Companies: They are formed by general and limited partners. General partners have the same rights and duties as the limited partners. Limited partners must make a contribution to the company, they are not personally responsible for the company’s debts and they have no right to take part in the society’s management and administration. A special type of limited partnership company is the Limited Partnership by shares, in which all the limited partners’ money is represented by shares.
In order to form any of these trading societies, it is necessary to get permission from the company’s deed founders in the presence of a notary.
The Deed must mention all those references that identify the company and regulate how it works. As well as its trade name, address, capital, length and the date operations started. Officially, the company acquires legal entity when the deed is registered in the Trade Registry from the region where it is located. The process of formation of a Trade Company takes approximately two months. However, the new company can start to operate before it is registered in the Trade Register. The inherited expenses to the constitution of a company are 1% of the cost of its capital on Transfer Assets tax and the notary’s cost and register estimated duty.
It is important to stress that any of these companies can establish agreements with one or more enterprises to form a group of companies without affecting its legal or financial independence. The group of companies can originate from different types of relationships between its businessmen, and they facilitate or develop their members’ activities together. The main groups of companies legally acknowledged in Castilla y León are:
Economic Interest Grouping, EIG (Agrupaciones de Interés Económico, AIE):
It is an association of companies introduced in Spain by Law 12/1991, dated 19th of April, and it has its own legal personality. The regulations of general partnership companies that become compatible with the nature of these Economic Interest Groupings are of subsidiary application.
The main objective of this type of grouping is the development in the Spanish market of the functions that European Economic Interest Groupings carry out in Europe. They may be constituted by companies, business people, traders, professionals or non-profit investigation entities, after the necessary inscription in the Mercantile Registry by means of the Deeds of Constitution. The partners in this type of groupings are personally and jointly responsible for the debts, although this responsibility is subsidiary of the EIG.
The regulations on Company Tax (Law 43/1995, dated 27th of December) came into effect the 1st of January 1996 and they establish a special tax regime for the EIG. These entities do not pay in a fiscal transparency regime except for the following cases:
* They do not pay the Company Tax for the taxable base corresponding to those partners residents in the Spanish territory, it will be assigned to those partners.
* No limitations on negative taxable base assignment will be applied.
* This special regime is not to apply to tax periods in which the EIG takes activities that are different from their object or such situations in which they own shareholding in member companies or they manage activities for their partners or a third party.
The constitution, the partners’ contribution and reduction, dissolution and liquidation are exempt from capital transfer tax and legally documented transaction tax.
European Economic Interest Groupings, EEIG (Agrupaciones Europeas de Interés Económico, AEIE):
EEIGs were established by Council Regulation EEC 2137/1985, dated 25th of July. The regulations require Member States to make further provisions in respect of EEIGs under national law in order to give practical effect to the EU regulations. In Spain the relevant pieces of legislation are the same as those regulating EIGs.
The same as the groupings mentioned before, the EEIGs follow a special regime of tax payment regulated by the law on the Company Tax of 1995. In general terms an EEIG enjoys several advantages including “legal capacity” – the right to enter into contracts and to sue (or be sued) – and tax transparency. Taxation operates under a system of fiscal transparency; that is to say, any profits, losses or gains are shared between the members according to their shares. These are then taxed in the hands of the members according to the relevant national law in the normal way.
Temporal Union of Companies, (Unión Temporal de Empresas, UTE):
UTE is a Spanish legal term meaning that two or more companies or individuals submitting a joint offer to a public bid, expressly commit themselves to incorporate a UTE in case they are finally awarded the contract. UTEs do not have legal personality notwithstanding their being incorporated through a public deed by a Notary Public. Their only aim is to carry out the contract they have been awarded, so they are extinguished at the end of the contract. This type of company is recognised from 1982 (Law 18/1982, dated 26th of May) and it is also contemplated in the Company Tax Rules of 1995. Both regulations establish the fiscal regime for this type of grouping.
Branches of Foreign Companies:
The Branches of Foreign companies established in Castilla y León do not have legal capacity independent from a matrix society. In order to create them, there are two requirements: a Deed of Constitution to be submitted to notary and the inscription in the Mercantile Registry with the following documents:
* The statutes and deeds of constitution.
* The act of the meeting session of the administration council, with the details of the opening, the allowance, and the attorneys and representatives of the company.
* The certificate from a Spanish bank crediting that the assets assigned for the company in the meeting session act have been transferred to Spain.
Generally, the costs inherent to the creation of a branch represent 1% of the capital assigned as Capital Transfer Tax and the costs of notary and registry, calculated according to current duty.
Any individual can establish their own business in Castilla y León with a limited responsibility and always under the legal regulations.
Income Tax (Impuesto sobre la Renta de las Personas Físicas, IRPF):
It is an annual direct tax from the Spanish Treasury. The pricing varies according to the activity developed.
Any individual that develops an activity within the Spanish territory, either national or foreigner, must pay this personal income tax (IRPF).
It is a direct and personal tax that assesses the income of companies and other legal entities not subject to income tax.
Valued Added Tax, VAT (Impuesto sobre el valor añadido, IVA):
Valued Added Tax (VAT) is an indirect and general consumption tax assessed on the value added to goods and services. It is borne ultimately by the final consumer and is charged as a percentage of the price. Every consumer inSpain must pay it.
Every year a summary of this VAT is done in three books:
- Book of VAT effects registry, which includes the bills.
- Book of purchases and expenses.
- Book of capital goods that specifies the purchased chattles and real estate worth more than €3000.
Businesses can deduct from their VAT liability the amount of tax they have paid to other taxable persons on purchases for their business activities every three months. Some free-lancers who develop artistic acitivities are exempt from tax application in Spain (scriptwriters, actors…).
EU citizens and Non-EU individuals whose coutnry has a colaboration agreement may apply to Spain for a refund of the VAT they have paid on purchases made while visiting Spain that they send or take home.
Business Occupation Tax (Impuesto sobre Actividades Económicas, IAE):
This tax replaces the former fiscal licence for professionals and business operators. The tax has a local indirect character. Spanish and foreign companies are required to pay it if they wish to develop a laboral activity in the country. The activity will be exempt of tax for the first two years, but after that tax is compulsory if the activity is worth more than €1 million.
Personal Property Tax (Impuesto Sobre el Patrimonio):
It is a personal annual tax on all types of goods and rights of an economic content. This tax is compulsory for all individuals resident in the Spanish territory when their net wealth is more than €108182.18, or their personal goods and rights are worth more than €601012.10.
Furthermore, individuals living abroad will declare all those goods and rights within the Spanish territory whatever value they are.
The declaration of this tax will be presented together with the income tax declaration in the Office of the State Tax Administration Agency.
Real Estate Transfer and Legally Documented Transaction Tax (Impuesto Sobre Transmisión Patrimonial y Actos Jurídicos Documentados):
There are three types:
- Real estate and burdensome transfers: it is a tax on the salaried transfers of all types of goods and rights of the real estate of individuals or legal entities. Business people on current exercise of their activity and whose goods are under VAT will be exempt of this tax.
- Companies operations: it is a tax on the operations of constitution, improvement or impairment of capital, fusion, spin-off, and extinction of companies. Also, the move of the head office or fiscal residence from a Non-EU country to Spain. The deadline to declare is 30 working days from the moment the operation is done.
- Legally documented transactions: this type taxes notarial documents, mercantile documents and administrative documents (preventive comments in public registry). The deadline to submit the declarations is 30 working days from the moment the document is issued.
There are two offices where one can present any of these types of tax declarations: the Regional Services Offices of the Spanish Treasury and the Property Tax District Offices.
Some audiovisual works present certain elements likely to be registered as a trademark, according to the current trademark laws (Ley de Marcas) on titles, slogans, logotypes, and even names, phrases or forms of certain characters. Restrictions depend on the type of production (animation, advertising, cinematography) and the marketing plans that the production company has for it. Each product will be registered in the Spanish office of Patents and Trademarks (Oficina Española de Patentes y Marcas) according to the type it belongs to. Applications may be pursued by interested parties themselves or through an official agent from the Industrial Property. It is important to remember that, in the case of industrial property, the rights come with registration: if the author has not registered the product, no right will assist him; that is why it is advisable to analyse the elements in each particular situation that may be protected under the trademark laws.
The past few years have seen the rise of a new type of advertising financing technique for cinematographic films known as “Product Placement”. It consists of the inclusion of a certain product, service or brand in the scene where the action will take place. The product may have a role of varying importance in the plot and it may even interact with the characters. For a proper use of this controversial resource it is necessary to receive express and written authorisation from the titleholder of such product and the producer of the audiovisual work.
In Spain image rights are regulated as a manifestation of all the rights of personality together with the right of honour and the right of privacy. It is a fundamental and consubstantial right that includes an exceptional system of guarantees. The right of image itself, this understood as a sacred manifestation of personality (not of person) may be used commercially and legislation was passed by Law 1/28 dated 5th of May, Article 7.
Therefore, whoever wishes to use private or intimate images of an individual must obtain authorisation from the subject himself; this authorisation may be revoked at any moment with no more requisites than the reparation of damages that such revocation may cause. This image is not understood as a legal object to traffic. The individual can authorise the interference of his image and desauthorise it to his convenience. It is not, therefore, a “cession of image”.