1Der Bund erlässt Vorschriften über die Geldspiele; er trägt dabei den Interessen der Kantone Rechnung.
2Für die Errichtung und den Betrieb von Spielbanken ist eine Konzession des Bundes erforderlich. Der Bund berücksichtigt bei der Konzessionserteilung die regionalen Gegebenheiten. Er erhebt eine ertragsabhängige Spielbankenabgabe; diese darf 80 Prozent der Bruttospielerträge nicht übersteigen. Diese Abgabe ist für die Alters-, Hinterlassenen- und Invalidenversicherung bestimmt.
3Die Kantone sind zuständig für die Bewilligung und die Beaufsichtigung:
a.
der Geldspiele, die einer unbegrenzten Zahl Personen offenstehen, an mehreren Orten angeboten werden und derselben Zufallsziehung oder einer ähnlichen Prozedur unterliegen; ausgenommen sind die Jackpotsysteme der Spielbanken;
b.
der Sportwetten;
c.
der Geschicklichkeitsspiele.
4Die Absätze 2 und 3 finden auch auf die telekommunikationsgestützt durchgeführten Geldspiele Anwendung.
5Bund und Kantone tragen den Gefahren der Geldspiele Rechnung. Sie stellen durch Gesetzgebung und Aufsichtsmassnahmen einen angemessenen Schutz sicher und berücksichtigen dabei die unterschiedlichen Merkmale der Spiele sowie Art und Ort des Spielangebots.
6Die Kantone stellen sicher, dass die Reinerträge aus den Spielen gemäss Absatz 3 Buchstaben a und b vollumfänglich für gemeinnützige Zwecke, namentlich in den Bereichen Kultur, Soziales und Sport, verwendet werden.
7Der Bund und die Kantone koordinieren sich bei der Erfüllung ihrer Aufgaben. Das Gesetz schafft zu diesem Zweck ein gemeinsames Organ, das hälftig aus Mitgliedern der Vollzugsorgane des Bundes und der Kantone zusammengesetzt ist.
Art. 106 BV — Overview
Art. 106 BV regulates money games in Switzerland and creates clear responsibilities between the Confederation and the cantons (BSK BV-Oesch, N. 14). The Confederation must issue regulations for all money games while taking cantonal interests into account (Art. 106 para. 1 BV). This comprehensive federal competence was implemented through the Money Gaming Act (MGA), which entered into force on 1 January 2019 (BBl 2010 7961).
Casinos require a federal licence and must consider regional circumstances (Art. 106 para. 2 BV). The Confederation levies a casino tax of up to 80 percent of gross gaming revenue, which should accrue entirely to the OASI and DI (Art. 106 para. 2 sentence 3 BV). The practice whereby only the OASI benefits is constitutionally disputed (BSK BV-Oesch, N. 24).
Large-scale games such as lotteries and sports betting are authorised and supervised by the cantons (Art. 106 para. 3 BV). This responsibility led to monopolisation by Swisslos and Loterie Romande, which is critically discussed in light of economic freedom (BSK BV-Oesch, N. 38). The net proceeds must be used entirely for public benefit purposes (Art. 106 para. 6 BV).
Online money games are subject to the same rules (Art. 106 para. 4 BV). The Federal Supreme Court has recognised DNS blocking against foreign providers as proportionate (BGE 148 II 392), although these are only of limited effectiveness.
Player protection is a central objective (Art. 106 para. 5 BV). The Confederation and the cantons must ensure adequate protection against the dangers of gambling through legislation and supervisory measures. Coordination takes place through joint bodies (Art. 106 para. 7 BV) and since 2021 through the Swiss-wide Money Gaming Concordat.
Example: Anyone operating an illegal poker platform commits a criminal offence. The Federal Supreme Court classified Texas Hold'em tournaments as games of chance because the skill factor does not outweigh the element of chance (BGE 136 II 291). Without a licence or permit, any offer of money games is impermissible.
N. 1 The current constitutional provision on games of chance is the result of over a hundred years of development. The prohibition of casinos was already incorporated into the Federal Constitution in 1874 (Art. 35 old Const.). This absolute prohibition remained in effect until the popular vote of 7 March 1993, when the repeal of the casino prohibition was accepted with 72.5% yes votes (BBl 1991 III 837; BBl 1993 I 1445).
N. 2 The total revision of Art. 106 Const. was effected through the direct counter-proposal to the popular initiative «For games of chance in the service of the common good», which was accepted by the people and the cantons on 11 March 2012 (BBl 2010 7961; AS 2012 3629). The Federal Council's message of 20 October 2010 emphasised the necessity of coherent regulation of the entire games of chance sector (BBl 2010 7961, 7965).
N. 3 The constitutional revision pursued three main objectives: First, the creation of a uniform competence basis for all games of chance, second, the anchoring of the principle of charitable use of proceeds, and third, the strengthening of coordination between the Confederation and the cantons (BBl 2010 7961, 7968). The constitutional legislator explicitly obligated the legislator to create coherent and appropriate regulation (BBl 2010 7961, 8006).
N. 4 Art. 106 Const. is placed in Section 3 «Financial Order» of Chapter 3 of the Federal Constitution. This systematic position underscores the fiscal character of the provision, although it primarily pursues regulatory policy and social protection objectives. Oesch rightly emphasises that the generation of revenue is not the main purpose of games of chance regulation (Oesch, BSK BV, Art. 106 N. 12).
N. 5 The provision is closely connected to economic freedom (Art. 27 Const.), from which it constitutes an explicit exception according to Art. 94 para. 4 Const. The Federal Supreme Court clarified in BGE 148 II 392 E. 5.1 that economic freedom does not apply in principle in the field of games of chance. This special position allows the legislator to create monopolies and concession systems.
N. 6 Cross-references exist in particular to Art. 112 para. 5 Const. (OASI/DI financing), Art. 3 Const. (federalism) and Art. 49 para. 1 Const. (primacy of federal law). The coordination obligation enshrined in Art. 106 para. 7 Const. is an expression of cooperative federalism and is connected to Art. 44 Const. (principles) and Art. 45 Const. (participation).
N. 7 According to Oesch, Art. 106 para. 1 Const. is «simultaneously a competence and mandate norm and establishes a binding and comprehensive jurisdiction of the Confederation in the entire field of games of chance» (Oesch, BSK BV, Art. 106 N. 14). The term «games of chance» is to be understood broadly and encompasses all games where a monetary prize is offered in exchange for a stake of monetary value.
N. 8 The consideration of cantonal interests (para. 1) is not merely programmatic but a binding requirement. The Federal Supreme Court held in BGE 135 II 338 E. 6.3 that this obligation has concrete effects on the design of federal legislation, particularly regarding the use of proceeds.
N. 9 The concession system for casinos (para. 2) is mandatorily designed. Regional circumstances must be taken into account, which implies an even geographical distribution of casinos. The casino levy is earmarked for OASI/DI. Oesch criticises the current practice whereby only OASI, but not DI, benefits from casino levies, as «requiring explanation in light of the clear wording of Art. 106 para. 2 sentence 3» (Oesch, BSK BV, Art. 106 N. 24).
N. 10 The cantonal competences (para. 3) are exhaustively enumerated. The exception for casino jackpot systems shows the interconnection of competence areas. The Federal Supreme Court clarified in BGE 141 II 262 E. 2.2 that the cantons may only exercise their competences within the framework of federal law requirements.
N. 11 The primary legal consequence is the comprehensive legislative competence of the Confederation, combined with a legislative obligation. This obligation was fulfilled through the Gaming Act of 29 September 2017 (GamA), which entered into force on 1 January 2019.
N. 12 For economic actors, it follows from Art. 106 Const. in conjunction with Art. 94 para. 4 Const. that there is no entitlement to free market access. Practice and doctrine recognise a «tacit authorisation to deviate from the principle of economic freedom if necessary» (Oesch, BSK BV, Art. 106 N. 15).
N. 13 The earmarking of proceeds is constitutionally binding. Casino levies must fully benefit OASI/DI, while net proceeds from large-scale games are to be used for charitable purposes. Use for general state purposes is impermissible.
N. 14 A central point of contention concerns the constitutionality of monopolising the lottery system. Oesch states: «The monopolisation of the lottery system in favour of Swisslos and the Loterie Romande appears not unproblematic in light of economic freedom» (Oesch, BSK BV, Art. 106 N. 38). However, this criticism is relativised by the Federal Supreme Court's extensive interpretation of Art. 94 para. 4 Const.
N. 15 The use of casino levies is also controversially discussed. The practice whereby only OASI, but not DI, benefits from casino levies is in tension with the constitutional text. In 2012, CHF 319 million flowed into the OASI equalisation fund, while DI received nothing (Oesch, BSK BV, Art. 106 N. 24).
N. 16 The scope of DNS blocks for foreign online providers was disputed. The Federal Supreme Court affirmed constitutionality in BGE 148 II 392, while parts of the doctrine view proportionality critically (cf. Thouvenin/Stiller, Expert Opinion on Network Blocks, 2016, p. 14 ff.).
N. 17 In the licensing of casinos, consideration of regional circumstances is not merely a political guideline but a justiciable legal obligation. Licensing decisions must implement this requirement comprehensibly.
N. 18 Intercantonal coordination has been conducted since 2021 through the Swiss-wide Gaming Concordat (SGC). Practitioners must note that Gespa as a public law institution has its own legal personality and its rulings can be challenged directly before the intercantonal gaming court.
N. 19 For online providers: Without a licence or authorisation in Switzerland, any offering of games of chance is impermissible. «Geoblocking» must be effectively implemented to avoid DNS blocks. The Federal Supreme Court recognises technical measures as sufficient only when they effectively prevent access from Switzerland.
N. 20 In the use of proceeds, the cantons must ensure that the funds are actually and demonstrably used for charitable purposes. Mere allocation to the general state budget with subsequent use for charitable purposes does not satisfy constitutional requirements.
BGE 136 II 149 of 1 October 2009
Calculation of casino tax in cases of cheque fraud and slot machine manipulation
The Federal Supreme Court clarifies the legal bases for casino taxation and develops principles for calculating gross gaming revenue in cases of unlawful conduct by third parties.
«Gross gaming revenue as the tax object is the difference between gaming stakes and winnings lawfully paid out by the casino. If a casino operator violates supervisory due diligence obligations in handling cheques, its gross gaming revenue is to be calculated as if the gaming and money exchange had been lawful.»
BGE 140 II 384 of 27 May 2014
Lawfulness and calculation of an administrative sanction against a casino operator
The decision clarifies the relationship between licensing supervision and data protection law as well as the application of ECHR procedural guarantees.
«The administrative sanction under Art. 51 SBG falls within the scope of the criminal procedural guarantees of Art. 6 para. 1 ECHR, but these were not violated here, as the collection of documents and the hearing of witnesses in the licensing supervision procedure was not associated with an abusive or disproportionate form of coercion.»
#Distinction between Games of Chance, Skill Games and Other Games
BGE 131 II 680 of 17 October 2005
Distinction between gambling and skill-based slot machines («Hot Time»)
Leading decision on the qualification of money gaming machines and the competence of the Gaming Board in classification procedures.
«The assessment of when a monetary prize offered in return for a stake depends entirely or predominantly on chance and when it depends sufficiently on skill must be based on an overall evaluation. The disputed machine has an entertainment value commensurate with the stake, whereby the existing random elements do not predominate and the game design ensures that the more skilled player has better winning chances than the less skilled player.»
BGE 136 II 291 of 20 May 2010
Gambling character of «Texas Hold'em» poker tournaments
The judgment establishes the competence of the ESBK to qualify games and affirms the gambling character of poker tournaments.
«The Federal Gaming Board is competent to decide whether a specific game qualifies as gambling within the scope of the Gaming Act or as a skill or entertainment game within the jurisdiction of the cantons. The disputed 'Texas Hold'em' poker tournaments are 'mixed' games where it is not established that the skill factor outweighs the random element of card distribution.»
BGE 137 II 222 of 1 January 2011
Distinction between lottery and other games of chance (game «Tactilo»)
Important decision on the relationship between the Lottery Act and Gaming Act and the significance of the technology used.
«The relationship between the Lottery Act and the Gaming Act is determined by the statutory distinction from the 1920s. The Lottery Act constitutes a lex specialis in relation to the Gaming Act. The technology used (here of electronic nature) has no influence on the legal qualification as gambling within the meaning of the Lottery Act.»
BGE 133 II 68 of 1 January 2007
Qualification of a financial product with sports betting reference
The decision clarifies the relationship between specific federal acts and the Code of Obligations as well as the definition of gambling.
«A financial product that offers a profit based on sports results does not meet the admissibility requirements of a premium bond nor the statutory definition of a permissible lottery. The statutory regulation of gambling takes precedence over the Code of Obligations.»
#Intercantonal Coordination and Jurisdictional Demarcation
BGE 141 II 262 of 9 July 2015
Competence of the Intercantonal Lottery and Betting Commission (Comlot)
Fundamental statements on gambling regulation at federal and cantonal levels as well as intercantonal coordination.
«The competence of the Intercantonal Lottery and Betting Commission to conduct classification and qualification procedures derives from the intercantonal agreement. Appeal in public law matters against a jurisdictional decision of Comlot is admissible.»
BGE 135 II 338 of 7 January 2009
Conformity with federal law of a «General Licensing Permit» for lottery products
The judgment addresses the intercantonal agreement on lotteries and betting as well as its relationship to federal law.
«The Federal Supreme Court may examine the conformity with federal law of intercantonal agreements. The intercantonal agreement on the supervision and licensing and revenue use of intercantonal or nationwide lotteries and betting is fundamentally in conformity with federal law.»
BGE 148 II 392 of 18 May 2022
DNS access blocking for foreign online money game providers
Leading decision on the constitutionality and proportionality of internet blocking in the money gaming sector under the new BGS.
«Foreign providers of online money games not licensed in Switzerland cannot invoke economic freedom and the case law of the ECJ or EFTA Court on union law freedom of establishment and services for market access. The currently practiced 'Domain Name System blocking' (DNS blocking) is proportionate despite its limited effectiveness.»
The judgment extensively develops the criteria for qualification as money gaming under the new BGS:
«Money games are games where a monetary prize or other monetary advantage is offered in return for a monetary stake or upon conclusion of a legal transaction. The scope of the Money Gaming Act encompasses fundamentally all games where a monetary prize or other monetary advantage is offered in return for a stake or upon conclusion of a legal transaction.»
On the proportionality of DNS blocking:
«The legislature was aware that one hundred percent effectiveness cannot be guaranteed and circumvention possibilities exist; nevertheless, DNS blocking was considered a blocking possibility that 'currently' constitutes the 'simplest and most appropriate solution for blocking non-licensed gaming websites'. The mere fact that access to non-licensed websites is at least made more difficult by these blocking measures should suffice for average players to guide them towards legal offerings.»
Judgment 6B_499/2024 of 20 November 2024
Violation of the Money Gaming Act
Current case law on the application of administrative criminal law in money gaming offences under the new BGS.
Federal Criminal Court BE.2025.2 of 15 May 2025
Unsealing procedure for illegal casino games
The decision shows the practical enforcement of money gaming law through house searches and seizures.
The case law on Art. 106 BV shows a continuous development from the original casino regulation through lottery acts to the modern Money Gaming Act (BGS) of 2019. Central themes are:
Qualification Issues: The distinction between different game categories follows objective criteria, where the relationship between chance and skill is decisive.
Taxation Aspects: Casino tax is calculated even in cases of unlawful conduct, with the federal government bearing the risk of apparatus-inherent manipulations.
Coordination: The federal structure requires intensive intercantonal coordination, which is examined by the Federal Supreme Court for its conformity with federal law.
Digitalisation: With the BGS 2019, the Federal Supreme Court has addressed the challenges of online gambling and affirmed the constitutionality of technical blocking measures.
Fundamental Rights: Economic freedom and proportionality are always weighed against the protective goals of money gaming law (player protection, combating money laundering, charitable purposes).