Art. 1 BGS: Subject Matter and Exclusions from the Scope of the Federal Act on Gambling
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What does matter in substance is the gap between the Federal Council's draft and the enacted text on promotional games (see let. d and e below).
Para. 1 also mentions the use of gaming proceeds. Chapter 9 implements this part of the Act's subject matter:
This earmarking also serves as an argument for interpreting the promotional-game exclusions (see the requirements common to let. d and e below).
Whether Art. 1(1) BGS applies depends on the definition in Art. 3 let. a BGS. A gambling game is a game in which a cash prize or another monetary advantage is offered in return for a stake of monetary value or the conclusion of a legal transaction Art. 3 BGS. Settled Federal Supreme Court case law identifies two defining elements, the stake and the chance of winning: "Die beiden Voraussetzungen müssen kumulativ erfüllt sein." (Both requirements must be met cumulatively.) BGE 148 II 392 The more recent judgment 2C_62/2025 expressly confirms this, with reference to BGE 148 II 392 2C_62/2025.
An element of chance is not part of the definition. According to the Federal Supreme Court, it makes no difference whether the chance of winning depends on skill or on chance, "da der Geldspielbegriff nicht hierauf abstellt" (since the concept of a gambling game does not turn on this) BGE 148 II 392. Chance only becomes relevant at the second stage: classifying the game as a lottery, game of skill or casino game, and with it the exclusion under let. b.
The alternative "conclusion of a legal transaction" considerably widens the stake element. Case 2C_62/2025 concerned online games that only people who had bought digital trading cards on a "marketplace" could play. The Federal Supreme Court upheld the lower court's finding that buying the cards was the conclusion of a legal transaction within the meaning of Art. 3 let. a BGS, because the purchase was economically intertwined with taking part in the game 2C_62/2025. What mattered was this economic link between purchase and game, not whether the purchase was legally independent. It is irrelevant "ob die Gegenleistung eines Rechtsgeschäfts nach der Teilnahme am Spiel wertlos wird" (whether the consideration received under a legal transaction becomes worthless after taking part in the game) 2C_62/2025.
Nor does the possibility of recovering the stake rule out a gambling game. In BGE 148 II 392, users could buy virtual units and later sell them again. The fact that some or all of the original purchase price might be recovered made no difference, because "die Definition von Art. 3 lit. a BGS stellt nicht hierauf ab" (the definition in Art. 3 let. a BGS does not turn on this) BGE 148 II 392.
Free credits or free access do not remove the stake if participation in fact runs through paid services. In criminal proceedings, the Federal Supreme Court treated paid "ancillary services" required once free credit was used up as mere pretexts to give the games a free character 6B_995/2021.
Judgment 2C_62/2025 goes further and states the point as a matter of principle: "Ebenso steht die Möglichkeit, gratis an einem Spiel teilzunehmen, dem Vorliegen eines Geldspiels nicht entgegen." (Likewise, the possibility of taking part in a game free of charge does not prevent it from being a gambling game.) Free participation is "lediglich im Rahmen der Ausnahmebestimmung von Art. 1 Abs. 2 lit. e BGS betreffend die Medienunternehmen von Relevanz" (relevant only within the exclusion in Art. 1(2) let. e BGS concerning media companies) 2C_62/2025.
This abandons, for the concept of a gambling game, the doctrine under the former law that an equivalent free route already ruled out a lottery. Its continuing role within let. e is discussed below.
It is enough that a cash prize or another monetary advantage is on offer. Gains from reselling virtual objects are monetary prizes, even if the objects are of no use outside the game BGE 148 II 392. Nor must a more expensive transaction increase the chances of winning. Whether the prize "bei Abschluss eines teureren Rechtsgeschäfts erhöht oder nicht, ist nicht von Bedeutung" (increases or not when a more expensive transaction is concluded is irrelevant) 2C_62/2025.
Once a game is a gambling game, it must be assigned to one of the categories in Art. 3 let. b–g BGS: lotteries, sports betting, games of skill, large-scale games, small-scale games or casino games Art. 3 BGS. For Art. 1, this stage matters mainly in two respects:
A casino game presented as a promotional game therefore cannot rely on let. d or e.
For games of skill, Art. 2 of the Gambling Ordinance (VGS) gives non-exhaustive criteria for drawing the line Art. 2 VGS:
The exclusions in paras. 2 and 3 rest on different grounds:
What they have in common is that they operate against the background of a deliberately comprehensive scope BGE 148 II 392. For the private circle, the Dispatch expressly calls for restrictive application, "Um Gesetzesumgehungen zu vermeiden" (in order to prevent circumvention of the law) BBl 2015 8387.
The exclusions do not remove the areas concerned from all oversight. The intercantonal authority may request information and documents "in den Bereichen nach Artikel 1 Absätze 2 und 3" (in the areas under Art. 1(2) and (3)) to establish whether a large-scale game is involved (Art. 108(1) let. b BGS) Art. 108 BGS. Anyone relying on an exclusion should therefore expect an inquiry and be able to document the facts on which the exclusion rests. The sources reviewed contain no express rule on the burden of proof for the exclusions.
In Art. 1 VGS, the Federal Council defined the private circle exhaustively through four cumulative requirements Art. 1 VGS:
The last requirement rules out any skimming in favour of the organiser. A "rake" or table fee therefore defeats the private circle under the fourth criterion, and an entry fee under the third. The connection between participants works as a yardstick: the closer the relationship outside the game, the larger the group may be. The Dispatch speaks of a narrowly limited circle of participants BBl 2015 8387.
Automated games. In a 2025 penal order, the Federal Gaming Board (ESBK) held that the exclusion "nicht auf automatisierte Spiele beziehen" kann (cannot apply to automated games) ESBK 62-2020-067-02. The accused had made two devices with casino games available to third parties in her flat, against stakes. She argued that she had neither advertised nor acted commercially. The ESBK held this irrelevant: "Ausschlaggebend ist einzig, dass der Besucher bei den in der Wohnung angebotenen, automatisierten Spielen jeweils für sich allein spielt und es hierbei folglich auch nicht darum gehen kann, freundschaftliche, soziale oder familiäre Beziehungen zu pflegen." (The only decisive point is that, in the automated games offered in the flat, each visitor plays alone, so the purpose cannot be to cultivate friendly, social or family relationships.) ESBK 62-2020-067-02
This purposive reasoning is persuasive: the exclusion protects sociable play, not play that merely takes place in private premises. It is, however, the administrative practice of the prosecuting authority. The sources reviewed contain no court decision on the question.
Poker rounds. For poker rounds in club premises, decision BV.2022.51 of the Federal Criminal Court on a seizure shows which facts point against a private circle ch-bstger--bv-2022-51:
The court only found sufficient suspicion of unlicensed casino games under Art. 130(1) let. a BGS and did not decide the private-circle question on the merits ch-bstger--bv-2022-51. The decision therefore illustrates the relevant facts but does not interpret Art. 1 VGS.
The exclusion covers games of skill that are operated "weder automatisiert noch interkantonal noch online" (neither automatically, nor intercantonally, nor online). The Dispatch stresses that these requirements are cumulative. It gives as examples socially harmless games "wie etwa verschiedene Jass-Formen" (such as various forms of Jass, a Swiss card game) BBl 2015 8387.
The exclusion mirrors the definition of large-scale games: games of skill operated automatically, intercantonally or online are large-scale games (Art. 3 let. e BGS) Art. 3 BGS. Lotteries, sports betting and poker tournaments have a small-scale category, but the BGS provides none for games of skill (Art. 3 let. f BGS) Art. 3 BGS. A local, non-automated game of skill therefore falls outside the Act altogether.
The route to let. b opens only once the game has first been classified as a game of skill under Art. 3 let. d BGS and Art. 2 VGS. A local game of chance remains a casino game or a small-scale game.
The decisions reviewed have not interpreted "automated", "intercantonal" or "online" for the purposes of let. b. The ESBK's reasoning on the private circle (each individual plays against a device) suggests why the Act treats automation as increasing the risk ESBK 62-2020-067-02.
Two levels must be distinguished for games of skill.
Large-scale games of skill. For games of skill that fall under the BGS as large-scale games, Art. 28 let. c BGS gives the cantons federal power to prohibit their operation entirely "in rechtsetzender Form" (by legislative act) Art. 28 BGS.
Games excluded under let. b. The BGS does not regulate these games. The sources reviewed do not expressly answer whether the cantons may legislate on them independently.
The exclusion follows from the breadth of Art. 3 let. a BGS: a competition with an entry fee and prize money formally meets both elements, stake and chance of winning. The Dispatch states that sports competitions "könnten unter die Geldspieldefinition von Artikel 3 Buchstabe a fallen" (could fall under the definition of gambling games in Art. 3 let. a) and must therefore be excluded BBl 2015 8387.
The exclusion covers the competition itself, not bets on its outcome. Sports bets are gambling games in which the prize depends on correctly predicting the course or outcome of a sporting event (Art. 3 let. c BGS) Art. 3 BGS. The line therefore runs between a participant staking on their own sporting performance and one staking on someone else's event. The sources reviewed do not decide what counts as a "sports competition" (for example for eSports or fantasy formats).
The Federal Council's draft contained a single exclusion for sales-promotion lotteries and games of skill in which free participation was possible "zu den gleichen Bedingungen wie bei Leistung eines geldwerten Einsatzes oder bei Abschluss eines Rechtsgeschäfts" (on the same conditions as when a stake of monetary value is paid or a legal transaction concluded) BBl 2015 8387. The rule was meant to follow existing practice for the mass media and the retail trade, while better ensuring that free participation was genuinely available BBl 2015 8387.
The enacted Act splits the exclusion into two provisions with different logic BBl 2017 6245:
| Feature | let. d | let. e |
|---|---|---|
| Organiser | anyone | media companies only |
| Game types | lotteries and games of skill | lotteries and games of skill |
| Duration and purpose | short-term, for sales promotion | short-term, for sales promotion |
| Risk | no risk of excessive gambling | no risk of excessive gambling |
| Route to participation | only by buying goods or services at prices no higher than market prices | paid participation possible, but free participation also available on equally good access and participation conditions |
The Dispatch's explanations of the free-participation requirement therefore now apply only to let. e. For let. d they describe a concept the legislature did not adopt. The sources reviewed do not document why Parliament redrafted the provision.
Both provisions require that the game:
Neither the Act nor the VGS gives these terms further content, and no implementing provision on let. d and e was found in the sources reviewed. The requirements are to be read as cumulative.
The Dispatch already justified the cumulative approach by the need to ensure that the constitutional requirement under Art. 106(3) let. a and b BV, that net profits from such games be used entirely for public-benefit purposes, "nicht unterwandert wird" (is not undermined) BBl 2015 8387. This purpose suggests that permanent offers, recurring series of games or formats with addictive potential should not be treated as promotional games, even if participation formally runs through a purchase.
Let. d builds on the stake variant "conclusion of a legal transaction" in Art. 3 let. a BGS. The Federal Supreme Court accepts a purchase as a stake even where the item bought has value 2C_62/2025. Without let. d, every draw tied to a purchase would therefore be a gambling game.
The exclusion permits such draws as long as the price is no higher than the market price, so that no hidden gaming surcharge is levied. If the price exceeds the market price, the difference economically becomes a stake in the game and the exclusion no longer applies.
The requirement that participation take place "exclusively" through the purchase rules out additional participation fees, such as premium-rate numbers or paid extra tickets. Let. d does not say whether an additional free route is harmful; in any event it is not required. The sources reviewed contained no case law on "market price", "short-term" or "exclusively".
Since free participation is now legally relevant only under let. e (see the stake section above), this provision is decisive. In 2C_62/2025, the Federal Supreme Court noted that the provider had "zu Recht nicht geltend gemacht" (rightly not argued) that let. e applied. The existing free option therefore did not help the provider 2C_62/2025.
Case law on free participation under the former law offers a closely related aid for interpreting "equally good access and participation conditions", because it concerned media competitions. It can only be applied by analogy, however: it was decided under the former Lotteries Act and concerned the concept of a lottery itself.
The sources reviewed do not define a media company. The Dispatch mentioned Swiss television and print media, whose revenue from increased transmission charges was not subject to the earmarking requirement BBl 2015 8387.
Unfair competition. Exemption from the BGS does not mean exemption from the Unfair Competition Act (UWG). In particular, anyone who promises a prize in a competition or prize draw acts unfairly if claiming the prize depends on using a paid premium-rate number, paying expenses, buying goods or services, or entering a further draw (Art. 3(1) let. t UWG) Art. 3 UCA. Let. d therefore allows a purchase as a condition of entry, but does not allow claiming a prize already promised to depend on a purchase.
Tax. Federal tax law refers expressly to let. d and e. Individual winnings from sales-promotion lotteries and games of skill "die nach Artikel 1 Absatz 2 Buchstaben d und e BGS diesem nicht unterstehen" (which are not subject to the BGS under Art. 1(2) let. d and e) are tax-free up to CHF 1,100 (Art. 24 let. j DBG) Art. 24 DBG. Individual winnings above that amount are subject to withholding tax (Art. 6(2) VStG) Art. 6 VStG. Classification under Art. 1(2) BGS thus has direct consequences for how prizes are paid out.
The Dispatch explains the exclusion as a boundary with the financial services sector. Numerous financial services, such as exchange-traded structured products, could otherwise fall under the definition of a gambling game in Art. 3 let. a BGS, "was verhindert werden soll" (which is to be avoided) BBl 2015 8387. The enacted text ties the exclusion more precisely to FINMA supervision under the Financial Market Supervision Act (FINMASA) BBl 2017 6245. The parliamentary materials on this redrafting could not be consulted.
On the wording, what decides is not whether an offer resembles a financial product but whether it is in fact subject to supervision. The following are subject to FINMA supervision (Art. 3 FINMASA) Art. 3 FINMASA Art. 1 FINMASA:
An offer marketed as "trading" or "tokens" but not subject to such supervision cannot rely on let. f merely because of how it is presented. It must still be tested against the concept of a gambling game.
The sources reviewed contained no court decisions on this boundary (binary options, crypto games). The line of BGE 148 II 392, under which tradable virtual objects that can be resold at a profit may constitute a gambling game, shows that the gambling classification can apply even to trading-like structures BGE 148 II 392.
In civil law, Art. 513(2) of the Code of Obligations (OR/CO) must also be borne in mind. It makes contracts for differences and similar transactions in goods or securities "die den Charakter eines Spieles oder einer Wette haben" (which have the character of a game or bet) unenforceable Art. 513 OR.
Para. 3 excludes these schemes from the Act and refers them to the UWG. The Dispatch describes this as continuing the existing legal position, because these schemes were already governed by Art. 3 let. r UWG BBl 2015 8387. Under that provision, the test is whether benefits are offered on terms that mean an advantage "hauptsächlich durch die Anwerbung weiterer Personen … und weniger durch den Verkauf oder Verbrauch von Waren oder Leistungen" (mainly through recruiting further persons … rather than through selling or consuming goods or services) (Art. 3(1) let. r UWG) Art. 3 UCA.
The referral marks a change of system from the former lottery law. The Zurich High Court noted that the revised UWG, in force from 1 April 2012, moved the rules on snowball schemes from the Lotteries Ordinance into the UWG, and decided an old case under Art. 43 no. 1 of the former Lotteries Ordinance RT130005.
On the substance, the court looked at two points:
These criteria help in interpreting Art. 3(1) let. r UWG. The classification as a lottery under the former law no longer does.
Criminal liability. Unfair competition under Art. 3 UWG is punishable only if committed intentionally and only on complaint. The Confederation has the rights of a private claimant in the proceedings (Art. 23 UWG) Art. 23 UCA. The intent requirement is often decisive in practice.
Mixed models remain unresolved: models that contain both a game with a stake and a chance of winning and a recruitment structure. The wording of para. 3 excludes "snowball, avalanche or pyramid schemes" as such. The sources reviewed do not decide whether a separately identifiable gambling game within such a scheme is nevertheless subject to the BGS.
The licence or concession required by Art. 4 BGS (see above) is valid only in Switzerland Art. 4 BGS. The category of game determines the competent authority:
The cantons license and supervise small-scale games. On the basis of the intercantonal concordat, Gespa may review cantonal licences for small-scale games "umfassend auf ihre Bundesrechtskonformität" (comprehensively for compliance with federal law), not merely on the boundary with large-scale games BGE 151 II 710.
Before the licensing decision, the intercantonal authority determines whether a game applied for is a large-scale game, in consultation with the ESBK. If they disagree, the coordination body is called upon (Art. 27(1) BGS) Art. 27 BGS. According to the case law reported by the Federal Criminal Court, Gespa is responsible for classifying large-scale games and the ESBK for classifying casino games ch-bstger--bv-2021-24.
The offences are as follows:
Under the former Casinos Act, criminal liability required a final classification ruling by the ESBK. The Solothurn High Court therefore acquitted for the periods before the classification rulings were published STBER.2020.70.
The position under the BGS is different. The Federal Criminal Court reports the Dispatch as saying that the adjudicating authority may classify the games itself "pour autant qu'aucune autorité administrative n'ait encore pris de décision exécutoire à ce sujet" (provided that no administrative authority has yet issued an enforceable decision on the matter) ch-bstger--bv-2021-24. This statement appears in a decision not to hear the case, so it is part of the reasoning rather than the basis of the decision.
The criminal authority therefore also decides incidentally whether an exclusion under Art. 1(2) or (3) BGS applies.
Online gambling games not licensed in Switzerland are blocked if both conditions are met (Art. 86(1) and (2) BGS) Art. 86 BGS:
Blocking presupposes that the game is a gambling game. Both leading Federal Supreme Court decisions on the concept of a gambling game were handed down in blocking proceedings BGE 148 II 392 2C_62/2025. According to the Federal Administrative Court, mere geoblocking is not a suitable technical measure for being removed from the blocking list 2023iv-1.
For acts committed before 1 January 2019, the former law is often more lenient. The Federal Supreme Court held that Art. 130(1) let. a BGS is not the more lenient provision, because the legislature deliberately upgraded former contraventions to misdemeanours. A fine for a contravention is more favourable than a monetary penalty "indépendamment des modalités d'exécution et de l'ampleur du montant" (regardless of how it is enforced and of the size of the amount) 6B_995/2021.
In administrative law, Arts. 140 et seq. BGS govern the transition of concessions and licences granted under the former law, including licences for gaming machines for games of skill (Art. 142 BGS) Art. 142 BGS. These transitional periods have since expired.
Art. 1 BGS does not regulate whether claims are enforceable; that follows from the Code of Obligations.
The Vaud Cantonal Court concluded from these rules that a loan for sports betting with the licensed Loterie Romande is not a natural obligation, so provisional removal of the objection to debt enforcement could be granted ch-vd-findinfo--cpf-kc22-045172-141-afbbc1f9.
For games excluded under Art. 1(2) BGS, such as those in a private circle, it follows that they need no licence. But because they have no official licence, claims arising from them are likely to fall under Art. 513 OR and remain unenforceable. The sources reviewed do not confirm this conclusion in a court decision. Nor do they say expressly how the terms in Arts. 515 and 515a OR ("Lotterie- oder Ausspielgeschäfte", lottery and prize-draw transactions; "Glücksspiele in Spielbanken", games of chance in casinos) map onto the BGS categories.
For snowball schemes excluded under para. 3, practice under the former law held the contract void RT130005 and ruled out recovery under Art. 66 OR CC.2007.42. Both decisions, however, based the unlawfulness on the former lottery law, not on the UWG.
Subject matter, constitutional basis and text version
Art. 1(1) BGS defines what the Act regulates: the admissibility of gambling games (Geldspiele), how they are operated, and how their proceeds are used. Paras. 2 and 3 exclude certain games and activities from the Act's scope. The provision is therefore the entry threshold for the whole Act. Anything that falls under para. 1 and is not covered by an exclusion is subject to the general licensing requirement of Art. 4 BGS. In German: "Wer Geldspiele durchführen will, braucht eine Bewilligung oder eine Konzession." In translation: anyone wishing to operate gambling games needs a licence or a concession Art. 4 BGS. In practice, the exclusions therefore exempt an activity from the licence or concession requirement, from ongoing supervision and from criminal liability under the BGS. The authorities can still request information (see the features common to all exclusions below).
No official English version of the Act exists. Quotations from statutes, materials and decisions are given in the original language, with English translations added by the author.
Constitutionally, the BGS implements Art. 106 of the Federal Constitution (BV/Cst.). That article:
The Federal Supreme Court stresses that the Act regulates the admissibility of gambling games "umfassend" (comprehensively). The legislature deliberately created a broad umbrella category that replaces the earlier concepts of lotteries, sports betting, games of chance and games of skill BGE 148 II 392. The section on the exclusions below explains what this basic choice means for interpreting them.
The wording of Art. 1 BGS has not changed since the Act was adopted on 29 September 2017: