Building on our recently published chapter in the Chambers and Partners Blockchain Guide 2025
This briefing launches our Blockchain Insight Series, which expands on the material we contributed to the newly released Chambers and Partners Blockchain Guide 2025. In this first article we analyse MiCA’s reverse solicitation exemption (Article 61), outline its strict limits, and highlight practical red flag scenarios drawn from ESMA’s December 2024 Final report and February 2025 Guidelines. We also consider whether EU-based CASPs can rely on the carve-out while national authorisation procedures are still being finalised.
Reverse solicitation under MiCA refers to cases where a customer, established or situated in the European Union, requests on their own exclusive initiative a crypto-asset service or activity from a crypto-asset service provider (“CASP”) based in a third country. In this way, MiCA establishes a narrow derogation from the Regulation’s authorisation requirement, applicable solely in the limited circumstances expressly set out below.
Reverse solicitation is stipulated in Art. 61 of MiCA: “(1) Where a client established or situated in the Union initiates at its own exclusive initiative the provision of a crypto-asset service or activity by a third‐country firm, the requirement for authorisation under Article 59 shall not apply to the provision of that crypto-asset service or activity by the third‐country firm to that client, including a relationship specifically relating to the provision of that crypto-asset service or activity.”
The reverse solicitation exemption is tightly circumscribed and cannot be employed to circumvent MiCA’s obligations. Consequently:
- Reverse solicitation exclusively applies to those services or products requested by the client,
- Follow-up offers are only allowed if directly related to the original request and for services or products of the same type, and
- Marketing of new crypto-assets and crypto-asset services that are of the same type as the ones initially requested by the client must occur shortly after the client’s request (ESMA notes that the appropriate period will depend on the circumstances).
Follow-Up Offers and the “Same Type” Crypto‑Assets Limitation. ESMA’s Guidance
With respect to point b. above, the following categories illustrate, in ESMA’s opinion, examples of pairs of crypto-assets that should not be deemed the same type:
- Utility tokens vs. ARTs or EMTs: Tokens that simply grant access to a platform are fundamentally different from asset-referenced tokens (backed by fiat or other assets) and e-money tokens (pegged to official currency).
- Different technological foundations: Tokens built on separate distributed ledger networks (for example, Ethereum) or on non-DLT architectures must be classified separately.
- EMTs pegged to different currencies: even within the EMT category, tokens referencing the euro versus those referencing the US dollar are treated as separate classes.
- Fiat-backed vs. crypto-heavy ARTs: ARTs mainly backed by fiat reserves differ from those whose backing contains significant cryptocurrency components.
- Liquid vs. illiquid tokens: Tokens with deep, active markets must be distinguished from those that trade rarely or in minimal volumes.
- Identifiable vs. anonymous issuers: Tokens issued by a known, licensed entity differ from tokens whose issuer is unidentifiable.
Timing of Follow‑Up Marketing
Furthermore, the European Securities and Markets Authority (“ESMA”) concluded that setting a fixed time limit with respect to point c. above is not desirable, because the appropriate duration must be assessed on a case-by-case basis. Also, ESMA clarified that this time limit only applies to marketing activities described in point c. above and does not affect the commercial relationship between the CASP and its client, which is not subject to any time limit.
What Counts as Solicitation? ESMA’s Red Flag Activities
Regarding what is considered solicitation, we may refer to any form of direct or indirect promotion, advertising or communication aimed at EU customers. This includes:
- Search engine optimisation (“SEO”) that is specific to EU Member States,
- Having a website or social media account on platforms such as X, YouTube, Reddit, Facebook etc. in an EU language not commonly used in international finance (i.e., any language other than English); for example, an X account named “[CASP name] Germany”, in German,
- Managing communities or channels on platforms such as Instagram, WhatsApp, Discord, Telegram, Reddit, etc. in languages that are specific to EU Member States (i.e., any language other than English); also, managing communities or channels in English, but, for example, the chat is named “[CASP name] Official Romanian Community” or “[CASP name] Official Announcements for Italy”,
- Online advertisements and press releases targeting specific EU clients, such as those published in an EU specific language or local newspaper,
- Sending promotional e-mails or push notifications to encourage users to purchase crypto-assets or crypto-asset services,
- Sponsorship deals for events that target or involve participation by EU citizens,
- Affiliation campaigns with influencers who have a large audience in the EU etc.
Can Companies Based in the EU rely on Reverse Solicitation?
Even though reverse solicitation, as introduced under MiCA, is explicitly designed for third-country companies, we believe that an entity based in the EU may rely on reverse solicitation to serve clients in another EU Member State if the client truly initiates contact without any solicitation or marketing targeting that specific EU country. However, this may happen only where a Member State has not yet adopted a formal procedure for obtaining a MiCA authorisation.
Where a Member State has not yet adopted a formal procedure for obtaining a MiCA authorisation, the absence of such a process should not affect companies based in the EU or imply any attempt to circumvent the regulation. With no statutory mechanism available, these companies cannot be deemed at fault for not applying for an authorisation. Once a proper authorisation process is in place, however, CASPs must comply with all relevant obligations and cannot rely on reverse solicitation anymore.
Conclusion
In short, reverse solicitation gives entrepreneurs who are not based in the EU a clear and limited solution to offer crypto-asset services in the EU without obtaining a MiCA licence, so long as those services are genuinely initiated by the client and strictly confined to their request.
https://lexters.com/contact-usFor personalised MiCA compliance advice, please contact the Lexters team through the Contact Section.
This note is for general information only and does not constitute legal advice
