Art. 107 BV gives the Confederation the competence to control weapons and war material. This federal jurisdiction is comprehensive and displaces any cantonal regulation.
Paragraph 1 empowers the Confederation to enact regulations against the misuse of weapons, weapon accessories and ammunition. Despite the wording, this competence is not limited to repressive measures. The Confederation may create preventive regulations such as licensing requirements and registration systems. This provision forms the constitutional basis for the Weapons Act (WG), which regulates the acquisition, possession and trade of weapons.
Paragraph 2 concerns war material and encompasses the entire value chain from manufacture to export. This competence enables the Confederation to exercise comprehensive control over goods that can be used for military purposes. It is the basis for the War Material Act (KMG) with its strict licensing requirements and export controls.
Swiss weapons legislation is characterised by the Schengen association, which has led to a considerable expansion of federal competences. Individual legal scholars criticise that the Confederation has thereby exceeded its constitutional limits (Künzli, BSK BV, Art. 107 N. 13). The prevailing doctrine takes a different view and emphasises that Swiss law continues to be based on the principle of a right to acquire weapons.
A practical example shows the scope: A collector of historical weapons requires separate federal licences both for the acquisition of a military pistol (WG) and for ammunition components (KMG). Violations can lead to criminal sanctions and confiscation of the objects, as the «Supergun» case demonstrated (BGE 122 IV 103).
In war material exports, the neutrality policy dimension is central. The official Swiss position restricts neutrality law requirements to state deliveries. Critics argue that this distinction is outdated, as states today also control private arms exports (Meyer, Das Kriegsmaterialgesetz, 2007, p. 165 ff.; Künzli, Pendelausschläge des schweizerischen Rüstungsexportrechts, Sicherheit & Recht 2009, p. 141 ff.).
The case law shows a consistently strict interpretation of due diligence obligations. Even negligent violations of the complex licensing obligations can result in severe penalties. Companies in the defence sector must therefore implement comprehensive compliance systems (Amsler/Calderari, La réglementation des armes à feu, AJP 2014, p. 309 ff.).
N. 1 Art. 107 FC is based on Art. 40 former FC and was modernised in the context of the 1999 total revision. The new version significantly expanded federal competence by transferring to the Confederation not only the fight against misuse, but generally the regulation of the handling of weapons (BBl 1997 I 433). The provision takes account of the changed security situation and Switzerland's international obligations, particularly in the context of the Schengen association.
N. 2 The war material competence in para. 2 was adopted unchanged from Art. 41 former FC. The Federal Council message emphasises the significance of this provision for security policy and neutrality policy (BBl 1997 I 434). It enables the Confederation to exercise comprehensive control over the entire value chain of war material, from production to export.
N. 3 Art. 107 FC is classified in Chapter 3 «Financial and Economic Order», which underlines the economic policy dimension of weapons control. The provision is closely connected with → Art. 54 FC (Foreign Affairs), → Art. 118 para. 2 lit. a FC (explosives competence) as well as → Art. 184 and 185 FC (security policy).
N. 4 The competence is designed as a comprehensive federal jurisdiction. Unlike concurrent competences, federal law here displaces any cantonal regulation within the scope of application of the provision (Künzli, BSK BV, Art. 107 N. 4-5). The cantons retain only enforcement competences insofar as federal law provides for these.
#3. Elements of the Offence / Content of the Provision
N. 5Weapons, weapon accessories and ammunition (para. 1): According to the Weapons Act, the concept of weapons encompasses all devices and appliances that can be used for attack, defence, shooting, sport, hunting or for purposes that cause harm to others. Federal competence extends to all aspects of handling these objects.
N. 6Fight against misuse (para. 1): Despite the wording «against misuse», federal competence is not limited to repressive measures. Rather, it encompasses preventive regulations such as licensing requirements, registration systems and safety regulations (Künzli, BSK BV, Art. 107 N. 8-13).
N. 7War material (para. 2): The concept encompasses weapons, ammunition, military equipment and their components that are specifically designed or modified for warfare or military exercises. The definition is provided exhaustively in the War Material Ordinance (Künzli, BSK BV, Art. 107 N. 22-25).
N. 8 Para. 1 obliges the Confederation to issue regulations. This legislative obligation has been fulfilled with the Weapons Act (WA) and its implementing provisions. The provision does not establish subjective rights for private individuals, but exclusively constitutes a federal competence.
N. 9 The comprehensive regulatory competence for war material in para. 2 enables the Confederation to establish a comprehensive control system. This includes licensing requirements, export prohibitions, end-user certificates and criminal sanctions for violations.
N. 10Scope of federal competence after Schengen: A point of controversy concerns the question of whether the Confederation has exceeded its competences with the adoption of Schengen weapons law. Individual authors take the view that the Confederation has exhausted or even exceeded its only fragmentary competences limited to fighting misuse. Künzli counters that this view appears at least questionable, since Swiss weapons legislation continues to be based on the principle of the right to acquire, possess and carry weapons (Künzli, BSK BV, Art. 107 N. 13).
N. 11Neutrality law restrictions: The scope of neutrality law restrictions on private arms exports is controversially discussed. The official Swiss position states that this restriction applies only to state deliveries. Künzli criticises this position: Since today states also subject private arms exports to licensing requirements and thus possess the final decision-making authority over the admissibility of foreign business with weapons, this view can no longer convince (Künzli, BSK BV, Art. 107 N. 21).
N. 12 For legal application, the distinction between weapons under para. 1 and war material under para. 2 is decisive. Sport shooters and hunters are primarily subject to the WA, while manufacturers of military goods must observe the WMA. The dual use of certain goods can lead to overlaps.
N. 13 In cross-border cases, Switzerland's international obligations must be observed in addition to national law, particularly the Schengen acquis for weapons and various UN sanctions regimes for war material. Coordination takes place via SECO (war material) and fedpol (weapons).
N. 14 Case law shows a consistently strict interpretation of licensing requirements. Even the negligent violation of due diligence obligations can lead to criminal consequences, as illustrated by the «Supergun» case (BGE 122 IV 103). Companies in the arms sector must therefore implement comprehensive compliance systems.
BGE 150 II 519 of 21.5.2024
Relationship between criminal law security confiscation and administrative weapons confiscation for unlawfully imported collection objects.
Clarification of the coordination between Art. 69 StGB and Art. 31 WG in the scope of application of Art. 107 BV.
«The Weapons Act enacted pursuant to Art. 107 para. 1 BV aims to prevent the abusive use of weapons. It is intended to ensure both public safety and the safety of persons and property.»
BGE 135 I 209 of 30.4.2009
Compensation obligation for definitively confiscated weapons and weapon components of a German collector.
Confirms the scope of protection of Art. 107 BV as a competence basis for comprehensive weapons regulation.
«The Weapons Act contains no legal basis for confiscating the net proceeds from the realisation of items seized or confiscated for security reasons in favour of the state.»
BGE 122 IV 103 of 1.2.1996
Contraventions of the War Material Act; deliveries by Von Roll company to Iraq ("Supergun" case).
Clarification of the scope of Art. 107 para. 2 BV for war material exports and corporate responsibility.
«A company active in steel production and manufacturing components for war material is obliged to take security precautions that as far as possible exclude contraventions of the KMG in the operation from the outset.»
BGE 121 IV 358 of 26.10.1995
Contraventions of the War Material Act through commercial trade in handguns without general permit.
Determination of permit requirements under Art. 107 para. 2 BV for domestic war material trade.
«Anyone who trades war material domestically in numbers that do not substantially lag behind the turnover of a part-time dealer requires a general permit within the meaning of Art. 4 KMG, regardless of their intentions and motives.»
BGE 121 IV 365 of 26.10.1995
Standing to file nullity complaint against war material confiscation and right to be heard of third parties.
Procedural requirements in enforcement of Art. 107 para. 2 BV.
«The net proceeds from the realisation of confiscated war material are to be paid out to the owner affected by the confiscation.»
BGE 117 IV 336 of 5.11.1991
Confiscation of war material after simulated burglary theft and illegal sale.
Interpretation of mandatory confiscation pursuant to Art. 107 para. 2 BV for war material offences.
«War material may be confiscated pursuant to Art. 20 KMG upon establishment of a contravention of the KMG regardless of whether a renewed contravention of the KMG is sufficiently probable.»
BGE 117 IV 345 of 5.11.1991
Use of realisation proceeds for confiscated war material in the same procedural complex.
Property protection in enforcement of Art. 107 para. 2 BV.
«The net proceeds from the realisation of confiscated war material are to be paid out to the owner affected by the confiscation.»
Judgment 2C_444/2017 of 19.2.2018
Weapons seizure in domestic violence cases and threat assessment under Art. 107 para. 1 BV.
The Federal Court confirmed a broad interpretation of the concept of endangerment.
Judgment 2C_955/2019 of 29.1.2020
Confiscation of weapons after violent crime despite formal entitlement of the owner.
Preventive character of weapons legislation pursuant to Art. 107 para. 1 BV.
Judgment 2C_125/2023 of 21.5.2024
Realisation and destruction of illegally imported historical weapons and war materials.
Most recent confirmation of comprehensive federal competence under Art. 107 BV.
Judgment 6B_1262/2015 of 18.4.2016
Contravention of the War Material Act through circumvention of export permit.
Criminal procedural aspects under Art. 107 para. 2 BV.
Judgment 2A_546/2004 of 4.2.2005
Confiscation of weapons from German collector with forged weapons acquisition certificates.
International dimension of weapons regulation under Art. 107 BV.
Judgment SK.2018.41 of 10.10.2018
Attempted contravention of the War Material Act in ordering a military detonator from Russia.
Application of Art. 107 para. 2 BV to cross-border war material procurement.
Judgment SK.2015.18 of 25.9.2015
Contraventions of the War Material Act through unauthorised transactions.
Scope of criminal provisions under the competence of Art. 107 para. 2 BV.