Art. 1 BGS: Object and scope exclusions of the Federal Act on Gambling
BGS
Questa traduzione non è ancora disponibile. Versione disponibile visualizzata: English.
Kommentare werden geladen…
Kommentare werden geladen…
BGS
Questa traduzione non è ancora disponibile. Versione disponibile visualizzata: English.
Applicants for such funds have no legal claim to a contribution. The Bern Administrative Court confirmed that the authority decides at its discretion. A cantonal-connection requirement that excluded an intercantonal sports federation was lawful ch-be-administrative-court--100-2023-176.
The Act implements Art. 106 BV. The Confederation legislates on money games. The cantons authorise and supervise large lotteries, sports betting and skill games, and the same allocation applies to games operated by telecommunication Art. 106 Cst.. In the Council of States the bill was presented as implementing Art. 106 BV and as merging the Lotteries Act of 1923 and the SBG into a single act AB 2016 S 376.
Some exclusions therefore also allocate competence. For skill games that are neither automated, intercantonal nor online, the Confederation does not use its comprehensive legislative competence BBl 2015 8387.
Within the Act's scope, cantons keep further room to act:
The Geneva Court of Justice held that this power also covers the tombola privilege in Art. 41 para. 2 BGS. A cantonal ceiling of CHF 10,000 in total stakes therefore applied to a charitable association's tombola of about CHF 40,000 ATA/806/2026. These cantonal powers apply inside the Act. They are not exclusions under Art. 1.
Art. 1 is unchanged between the version in force from 1 January 2021 BGS (2021-01-01) and the current version in force from 1 September 2023 BGS (2023-09-01). The French text of lit. e carries a note recording an editorial correction by the Drafting Committee under Art. 58 para. 1 ParlA. That correction is not a substantive amendment Art. 1 BGS.
Which law applies depends on when the facts occurred:
Arts. 140 to 144 BGS deal with authorisations granted under the old law. Former authorisations for skill-game machines lapse unless new applications are filed in time Art. 142 BGS. Cantonal small-game authorisations remained valid for at most two years Art. 144 BGS. Since the entry into force, the intercantonal authority supervises skill games operated in automated form, online or intercantonally Art. 142 BGS.
A pecuniary stake and a prospect of gain must both be present. If either is missing, there is no money game BGE 148 II 392. The courts read the stake element broadly:
On free participation the BGS departs from the former lottery law.
Under the old law, a competition that could also be entered without a stake was not a lottery-like enterprise. This required that the announcement presented the competition "unmissverständlich" (unmistakably) as open with or without a stake, with equal chances of winning BGE 125 IV 213. The courts applied this strictly:
Under the BGS, the Federal Supreme Court held that the possibility of free participation does not prevent a money game. It matters "lediglich im Rahmen der Ausnahmebestimmung von Art. 1 Abs. 2 lit. e BGS betreffend die Medienunternehmen" ("only within the exception of Art. 1 para. 2 lit. e BGS concerning media companies") 2C_62/2025. The remark was made in a case where lit. e was not invoked. It nevertheless matches the legislative history discussed below.
In practice, the former free-route doctrine has moved out of the definition and into lit. e. Purchase-linked promotions now depend on lit. d.
A prize need only be "in Aussicht" (in prospect). No additional incentive to buy is required 2C_62/2025. A slot machine need not pay the gain out itself; payment by staff is enough 6B_489/2024. Operating a platform on which players play against each other is itself operating a money game, even where the gains come from trading between participants BGE 148 II 392.
Whether skill or chance decides the outcome is irrelevant to the money-game concept itself BGE 148 II 392. Skill matters only for the category, for example a skill game in which the gain depends "ganz oder überwiegend" (wholly or mainly) on skill Art. 3 BGS.
For machines, the courts compare the amount inserted with the entertainment value offered. A great disproportion indicates a money game; spending several francs per minute merely for entertainment was found implausible 6B_489/2024.
BGE 136 II 291 reserved public or commercial Texas Hold'em tournaments to casinos BGE 136 II 291. Art. 3 lit. f BGS now recognises small poker tournaments as small games Art. 3 BGS, so that outcome no longer transposes directly.
The leading BGS decisions confirm that the digital character of the object does not matter BGE 148 II 392 2C_62/2025. Loot boxes remain unresolved:
Both statements are non-binding.
Art. 1 VGS defines the exclusion. All four of the following conditions must be met:
The dispatch says the circle must be narrowly limited ("eng beschränkt"), giving families and office groups as examples. It adds that players competing against each other on a commercially operated platform are not a private circle BBl 2015 8387.
In the National Council, a proposal to exclude non-commercial games with stakes up to CHF 100 was rejected AB 2017 N 100. Parliament therefore chose not to replace the relational test with a monetary threshold.
None of the retrieved decisions construes Art. 1 para. 2 lit. a BGS or Art. 1 VGS by their wording. The case law instead builds on the former concept of the family and friendship circle.
Starting point. The Federal Supreme Court held that non-public Texas Hold'em tournaments for money in a circle of friends or family are permissible, while commercial or public poker belongs in casinos BGE 136 II 291.
Narrow reading. The Bern High Court reads the exclusion very narrowly. It applies only where the bonds of friendship between the players themselves neutralise the social risks the Act targets. In the case decided, a poker club had about 120 to 130 members. They mostly knew each other only by sight or first name and met at least every second Thursday. The court treated this as a mere community of interest, not a circle of friends SK 2017 36.
Factors that defeat the exclusion. Several decisions show which features take a game outside the private circle:
These factors correspond to criteria (a) to (d) of Art. 1 VGS: commerciality, public announcement, fees beyond the stake, and the size of the group and the ties within it. No retrieved decision links the two expressly.
Criterion (c) carries particular weight in practice. A membership fee that serves only to buy the right to play is already a stake (see "Club fees" under the threshold section) SU250016. It is also a cost or fee beyond the stake under Art. 1 VGS, so the exclusion fails as well Art. 1 VGS.
The three negative conditions are cumulative BBl 2015 8387. This mirrors Art. 3 lit. e BGS, under which a skill game becomes a large-scale game as soon as it is automated, intercantonal or online Art. 3 BGS.
What falls outside the BGS is therefore only a narrow category: the locally organised, non-automated skill game with a stake and a prize. For that category the Confederation leaves the field to the cantons BBl 2015 8387.
Skill games that are automated, intercantonal or online stay within the Act as large-scale games. They need Gespa authorisation, and their profits are not earmarked Art. 125 BGS. A canton may ban them entirely Art. 28 BGS. Ticino did so: Art. 4 of its implementing act prohibits large-scale skill games.
The Federal Supreme Court declared the challenge to the Ticino ban inadmissible. The appellants had requested only a reformatory remedy, namely a transitional provision, and in abstract review of cantonal norms only cassatory conclusions are admissible. The Court did not decide whether the ban is lawful 2C_251/2023.
A game qualifies for lit. b only if it really is a skill game, meaning the gain depends wholly or mainly on skill Art. 3 BGS. Operators regularly fail at this threshold. The Vaud court found a terminal game that "ne laisse aucune place à l'adresse ou à la dextérité du joueur" (leaves no room for the player's skill or dexterity) to be a casino game ch-vd-findinfo--cape-pe20-008995-168-877dfd12.
No retrieved decision applies lit. b to a game accepted as a skill game.
The exclusion exists because sports competitions could otherwise meet the definition in Art. 3 lit. a BGS. The dispatch's example is tennis tournaments with an entry fee and prize money BBl 2015 8387.
The decisive distinction is between taking part in the competition and betting on it:
Whether an event counts as sport is a federal-law question that Gespa can bring before the courts. In 2C_46/2023 a canton had authorised a local sports bet on a pig race. The Federal Supreme Court affirmed Gespa's standing to challenge that authorisation, because Gespa must review cantonal small-game permits comprehensively for compliance with federal law. The Court did not define "sports event" or "sports competition" 2C_46/2023.
The retrieved sources do not address esports, fantasy sports or tipping games under lit. c. BGE 148 II 392 indicates that platform-organised player-versus-player online formats with a stake and a prize are money games whatever their skill content BGE 148 II 392. That suggests lit. c should not be stretched to cover such formats. No court has yet decided the point.
The Federal Council's draft contained one exclusion for promotional lotteries and skill games. It applied only if free participation was possible on the same conditions as paid participation and was communicated clearly and unambiguously BBl 2015 8387.
Parliament replaced this with two separate regimes:
The dispatch's single free-entry test therefore no longer describes lit. d. It survives only in lit. e.
All of the following conditions must be met:
The exclusion is not limited to retailers AB 2017 S 626. Because buying a product to take part counts as concluding a legal transaction under Art. 3 lit. a BGS 2C_62/2025, lit. d is the only route by which a purchase-linked game can escape the Act.
No retrieved decision interprets "kurzzeitig" (short period), the excessive-gambling condition or the market-price condition. The terminal case law gives a guide by analogy for the price condition. Where "services" were priced out of proportion to their usefulness, the courts treated them as alibis disguising a stake 6B_995/2021. An offer of that kind would not satisfy the market-price condition. The courts in that case decided on the stake element, not on lit. d.
Lit. e requires all of the following:
This is the only place where the BGS still lets free participation matter 2C_62/2025. The strict former case law on equivalence and on presenting the free route to the average participant can serve as guidance, provided its different statutory setting is kept in mind 6B_775/2009 BGE 125 IV 213. The "gleich guten" wording, adopted to secure genuine equivalence AB 2017 S 322, points towards keeping that strict standard. No retrieved decision applies lit. e.
Excluded promotional games still have tax consequences under separate rules. Thurgau tax practice restates lit. d and e. It treats single winnings above CHF 1,000 (direct federal tax: CHF 1,100 from 2024) from Swiss promotional games as fully taxable, and treats winnings from foreign promotional games as always taxable Thurgauer Steuerpraxis, StP 25 Nr. 6 (2026-09).
The Federal Supreme Court explains that lit. f was enacted because numerous financial services, such as exchange-traded structured products, would otherwise fall under Art. 3 lit. a BGS, "was verhindert werden soll" (which is to be prevented) BGE 148 II 392.
The wording ties the exclusion to activities that are subject to FINMA supervision under the FINMASA Art. 1 BGS. Labelling a product as trading or investment is not enough. In BGE 148 II 392 the Court qualified a virtual-unit trading game as a money game despite the operator's argument that it was a financial-market activity BGE 148 II 392.
Under the former law, the Federal Supreme Court assessed a structured note with a football-result bonus as a whole, because note and bonus could not be acquired separately. Because the bonus depended on match results, the Court qualified the product as a prohibited professional bet BGE 133 II 68.
FINMA treats bet-like binary options as a question of financial-market law and intervenes against unauthorised providers FINMA: Client protection – How investors can protect themselves against unauthorised financial market providers. No retrieved decision applies lit. f to exclude an activity from the BGS.
Para. 3 sends these schemes exclusively to the UWG. According to the dispatch, this reflects the legal position before the BGS BBl 2015 8387. The National Council majority wanted to bring them under the BGS. The Federal Council version prevailed by 107 votes to 78 AB 2017 N 1266. In the Council of States the reason given was that the existing allocation of competence should be kept AB 2017 S 322.
Art. 3 para. 1 lit. r UWG defines the conduct: promising benefits whose advantage for the recipient lies mainly in recruiting further persons rather than in selling or consuming goods or services Art. 3 UCA.
Criminal liability requires intent and a criminal complaint Art. 23 UCA. In 6B_538/2022 the acquittal was upheld because the accused believed the business model was lawful and therefore lacked intent. The Court left open whether the objective elements were met 6B_538/2022.
The St. Gallen court held contracts based on such a system void under Art. 20 para. 1 OR. Payments could be recovered under Art. 62 ff. OR after deduction of commissions received BE.2019.51.
The dispatch's claim of continuity needs qualification. Before para. 3, the courts also treated such schemes under lottery law. The Federal Supreme Court classified a gift circle (Schenkkreis) as a lottery-like enterprise. Founding or running it was punishable; merely paying the entry stake was not BGE 132 IV 76. For a contract concluded in March 2012, the Zurich courts still relied on Art. 43 no. 1 aLV and refused enforcement because the contract was void RT150182.
The Thurgau High Court held that payments into a gift circle are not barred from recovery by Art. 66 OR ch-tg-supreme-court--rbog-2012-nr-02. That civil-law reasoning does not depend on lottery law. The lottery-law distinction between punishable organisers and non-punishable participants, however, has no direct counterpart in the retrieved UWG case law.
The Act gives no general authority to declare a game excluded under Art. 1. Qualification follows the authorities' fields of competence:
The former Comlot could only conduct a subordination or qualification procedure establishing whether an activity fell under the lottery ban. Retrospective sanctions belonged to criminal proceedings BGE 141 II 262.
On this point former and current law differ.
No retrieved Federal Supreme Court decision confirms the new position under the BGS. It is consistent with the materials as cited in these decisions.
An operator who wrongly relies on an exclusion faces the following:
The blocking regime has been upheld for novel formats BGE 148 II 392 2C_62/2025. The blocking measure is subject to review by the Intercantonal Gambling Court and then the Federal Supreme Court. An operator that introduces effective geoblocking can apply to be removed from the blocklist BGE 148 II 392.
For organisers and their advisers, the sequence of questions follows from the analysis above:
Function of Art. 1 within the gambling regime
Art. 1 BGS sets out what the Federal Act on Gambling regulates and where it stops. Para. 1 names three objects: whether money games are admissible, how they are operated, and how gaming proceeds are used. Para. 2 excludes six groups of activities. Para. 3 takes snowball, avalanche and pyramid schemes out of the Act and refers them to the UWG Art. 1 BGS.
The trigger for the Act is not in Art. 1 but in Art. 3 lit. a BGS. A money game is a game in which, in return for a monetary stake or the conclusion of a legal transaction, a money prize or other pecuniary advantage is in prospect Art. 3 BGS. The Federal Supreme Court reads this definition broadly: in principle "alle" games combining the two elements fall within the Act BGE 148 II 392. Because the definition is so wide, the exclusions in paras. 2 and 3 are where most disputes about scope are actually decided. The Court has itself used the FINMA exclusion as evidence that the legislature intended a broad concept of money game BGE 148 II 392.
The three objects in para. 1 match the purposes in Art. 2 BGS: protecting the population, safe and transparent operation, using the net profits of large-scale games (except skill games) for public-benefit purposes, and directing part of casino revenue to the AHV/IV Art. 2 BGS. Two operative rules give effect to these objects: