Reverse solicitation under MiCA

Article 61 of MiCA lets a firm from a third country provide a crypto service to a client in the EU when the client asked for it at its own exclusive initiative. The firm may then offer crypto assets or services of the same type, but only within that original transaction. Article 61(3) told ESMA to write guidelines on what counts as solicitation; ESMA consulted on a draft from January 29, 2024 and published the final guidelines on February 26, 2025, as Morais Leitão reports.

MiFID II has the same idea in Article 42 for investment services. The difference Reed Smith points out is legal form: MiFID II is a directive that each country transposed in its own way, while MiCA is a regulation and applies directly in every member state.

ESMA treats solicitation as any promotion, advertisement or offer to EU clients, by any channel. Ecovis lists the cases from the guidelines: direct advertising, country-specific search engine optimization, geo-targeted ads, sponsorship of sports events in the EU, paid influencers, a website in an EU language that is not common in international finance, and push notifications that ask a client to trade again. Solicitation by a third party acting for the firm counts too, even without a written contract.

A disclaimer in the terms does not change the facts, and the firm carries the burden of proof for each client. "Same type" is also read narrowly: a utility token and an asset-referenced token are different types, and so are e-money tokens in different currencies.

When the MiCA transitional period ended on July 1, 2026, some providers without a license hoped to keep their EU clients by calling the relationship client-initiated. ESMA rejected that: the exemption covers a one-off request from a client, never an ongoing client base. A firm without authorization has to wind down and give clients a deadline to move their assets.

For a German bank or broker the rule cuts both ways. It cannot rely on a non-EU crypto partner that markets to its clients, and as a CASP it may not outsource crypto services to a firm without authorization. National authorities watch search ads, social media and client complaints to find firms that solicit.

Finance Loop is the meeting place for compliance officers, lawyers and business heads who decide how a crypto service reaches clients in the EU. The Bybit EU Crypto Evening at TechQuartier dealt with compliance under MiCAR. Finance Loop connects the finance, IT and AI communities at events in Frankfurt, Munich, Berlin and Hamburg.

It is the exemption in Article 61 of MiCA that lets a firm from outside the EU serve an EU client without a MiCA license, when the client asked for the service at its own exclusive initiative. It covers that request and products of the same type within it.

It can. ESMA names websites in an EU language that is not customary in international finance as a sign of targeting, unless there is a commercial reason unrelated to the EU. Access to a website from the EU alone is not solicitation.

No. ESMA says the exemption covers a single client-initiated request. It cannot hold an existing client base, and it cannot cover marketing or cross-selling after the first transaction.