The myth of reverse solicitation under MiCA: risks for non-EU crypto firms

This article is for informational purposes only and does not constitute legal advice. Consult a qualified legal professional for advice specific to your situation.

Why the exception is not what firms hope it is

MiCA’s reverse solicitation provision is, in principle, sensible. EU clients who independently seek out services from non-EU firms, without any marketing or solicitation by those firms, are exercising their own freedom of action. Requiring EU authorisation as a precondition for serving a client who came to you is a disproportionate restriction on that freedom, at least in the abstract.

The problem is what the provision became in practice. In the period after MiCA was published and before the CASP transition period closed, reverse solicitation functioned as a catch-all justification for non-EU firms continuing to operate in the EU without engaging with the authorisation process. The reasoning, explicit or implicit, was that any EU client who signed up via a website was technically making their own decision. The firm was not soliciting them specifically. The exception applied.

That reading is wrong, and the regulatory landscape has clarified this in ways that make continued reliance on it significantly more dangerous than it appeared eighteen months ago.

What Article 61 of MiCA actually says

The reverse solicitation provision is at Article 61 of Regulation (EU) 2023/1114 (CELEX: 32023R1114). It permits a third-country firm to provide crypto-asset services to an EU client without MiCA authorisation where the client approached the firm at its own exclusive initiative.

The word “exclusive” carries significant weight. ESMA’s guidance, published in its opinion on reverse solicitation, specifies that the exception applies only where the approach was entirely client-initiated, with no prior solicitation, marketing, or promotional activity by the firm directed at that client or at clients in the EU generally. Where the firm has engaged in any activity that could reasonably be characterised as promoting its services to EU clients, the conditions for reverse solicitation are not met, regardless of the formal mechanism by which the client eventually makes contact.

The exception is also service-specific. Even where a genuine reverse solicitation has occurred and the exception applies, it covers only the specific service the client initially requested. A client who approaches a non-EU firm asking about spot crypto-asset trading has initiated a request that may, if genuinely unsolicited, fall within the exception for that service. The same client subsequently being offered staking services, lending products, or portfolio management by that firm is a different matter entirely. The extension of services beyond the scope of the original client-initiated request is firm-initiated. The reverse solicitation exception does not extend to it.

How ESMA interprets “own exclusive initiative”

ESMA’s opinion on reverse solicitation, issued under Article 61(3) of MiCA, sets out the factors that competent authorities should consider when assessing whether the exception genuinely applies. The opinion is not binding law in the same sense as the regulation itself, but it establishes the supervisory baseline that national competent authorities are expected to apply, and for which they will need to account if their approach deviates.

ESMA’s position is that the exception should be interpreted narrowly. The factors it identifies as inconsistent with genuine reverse solicitation include: advertising by the firm in media accessible to EU residents, use of social media accounts or channels directed at EU audiences, referral arrangements with EU-based intermediaries, promotional communications sent to EU clients whether by email or other channels, attendance at events in the EU for the purpose of client acquisition, and any form of retargeting or behavioural advertising that specifically reaches EU users.

The presence of any of these activities is, in ESMA’s assessment, sufficient to negate the reverse solicitation characterisation even for a client who technically made the first contact. The firm that has been running social media promotion accessible to EU residents and then receives an inbound enquiry from an EU client has not received a genuinely unsolicited approach. It has received a response to its marketing.

The practical implication is uncomfortable for most non-EU CASPs. Virtually every firm operating a commercially viable crypto-asset business maintains a website, social media presence, or content marketing effort that is accessible to EU residents. Very few can credibly demonstrate that their EU client base arrived entirely without any promotional exposure.

The closed transition period changes the risk calculation

Non-EU CASPs had, until the end of June 2026, some cover in the form of the MiCA CASP transition period. Member states had the option to permit CASPs that had been providing services under their national crypto-asset frameworks before MiCA became applicable to continue operating during a transitional window while applications for MiCA authorisation were processed.

That window has closed. The transition period ended in June 2026. CASPs that were relying on national transitional arrangements no longer have that basis for continuing to serve EU clients. The only lawful bases for a non-EU CASP to serve EU clients from this point are: MiCA authorisation through a subsidiary or branch established in an EU member state; reverse solicitation in circumstances that genuinely meet the Article 61 conditions; or a specific exemption applicable to the type of service being provided.

For firms that were relying on a combination of transitional arrangements and a loose interpretation of reverse solicitation, the closing of the transition period removes one layer of the justification. What remains is the reverse solicitation argument alone, now being applied in a supervisory environment that is actively scrutinising whether it is being used appropriately.

Enforcement signals

Several national competent authorities have moved from guidance to action on the non-EU CASP question in the period since the CASP transition period closed. The pattern in enforcement signals from multiple member states includes warnings directed at specific non-EU CASPs, requests for information about the volume and nature of EU client relationships, and formal findings that specific firms have been providing services without authorisation.

The MiCA crypto licence registry maintained by ESMA, which tracks authorised CASPs across all 30 EEA registries, is also the tool that competent authorities are using to identify non-EU firms serving EU clients without appearing on it. A firm that is identifiably marketing to EU clients, or that EU-based clients are publicly discussing as accessible to them, without appearing in the ESMA registry, is visible as a potential enforcement target in a way that was not previously the case.

For a current view of which CASPs hold MiCA authorisation and in which member states, the live registry data is accessible via the MiCA crypto licence registry.

Why “we have European clients who found us” is not a sufficient answer

The most common version of the reverse solicitation argument, when pressed, resolves to something like: our EU clients came to us of their own initiative, we did not specifically target them, and we therefore qualify for the exception.

This argument has two structural problems under the standard ESMA has established.

First, the presence of EU clients who can be described as having “found” the firm does not establish that they were not influenced by the firm’s marketing before making contact. A client who encountered a tweet, a YouTube review, an affiliate link, or a banner advertisement and then later “decided independently” to sign up has been influenced by commercial communications accessible to EU residents. That the firm did not address the communication specifically to that client, or did not intend EU residents to see it, does not bring the situation within the exception.

Second, the exception must be assessed at the level of the specific service transaction, not at the level of the client relationship in general. A client who joins a platform under reverse solicitation conditions and then receives any outreach from the firm, whether a promotional email, a push notification about a new product, or a follow-up about an unused balance, has at that point been solicited. Subsequent transactions cannot rely on the exception.

Firms that are providing a broad range of crypto-asset services to EU clients, maintaining ongoing client relationships with those clients, and sending them any form of communication cannot plausibly maintain that those relationships in their entirety are covered by reverse solicitation. The exception can apply to the first transaction in specific circumstances. It cannot provide blanket cover for an ongoing commercial relationship.

The strategic alternatives

Non-EU CASPs serving EU clients have four realistic options, each with different cost and certainty profiles.

EU authorisation through a subsidiary. Establishing a subsidiary in an EU member state and obtaining MiCA authorisation through it is the most operationally demanding option but the one that provides full legal certainty. The choice of member state for authorisation determines the applicable national competent authority and the supervisory culture the firm will operate under, while the authorisation passport then covers all 30 EEA states. For larger non-EU CASPs with significant EU client volumes, this is the route that makes long-term commercial sense. The authorisation process takes typically twelve to eighteen months from application submission to licence grant, depending on member state and application completeness.

White-label or distribution partnership with an authorised CASP. A non-EU firm that has an existing product it wishes to make available to EU clients can, in some circumstances, structure the relationship so that the authorised EU CASP is the entity with the direct client relationship. This requires careful structuring to ensure the non-EU firm is not itself providing services to EU clients, and it requires a partner CASP willing to take on the regulated relationship. It is not straightforwardly available for all product types.

Selective EU market withdrawal. Some non-EU CASPs have determined that the compliance cost and regulatory complexity of the EU market does not justify the revenue it generates, and have taken a deliberate decision to exit EU client relationships. This requires careful execution: EU clients must be identified and offboarded, marketing must be confirmed as not reaching EU audiences, and the firm must be able to demonstrate the completeness of the exit if challenged by a competent authority. An incomplete withdrawal that leaves residual EU client relationships while the firm claims to have exited is worse than no exit at all.

Genuine narrow reverse solicitation for specific cases. For non-EU CASPs providing specialist services to sophisticated institutional or professional EU clients who genuinely approach them without prior solicitation, the exception may legitimately apply. This is not a mass-market route. It requires documented evidence of the client’s exclusive initiative, no marketing of any kind directed at EU audiences, and service provision strictly limited to what the client requested. Maintaining this standard across a significant EU client base is not operationally realistic for most firms.

The documentation standard that applies if relying on the exception

Firms that conclude that their EU client relationships genuinely fall within the reverse solicitation exception need to be in a position to demonstrate that conclusion. ESMA’s guidance and the supervisory signals from national competent authorities indicate that “we believe the exception applies” is not sufficient. The documentation must support the conclusion.

That documentation should address, at minimum: the absence of marketing directed at EU residents prior to each client’s initial approach; the specific service requested at the point of first contact; the basis on which subsequent services were provided, if any; and a record of any communications between the firm and the client subsequent to the initial engagement.

Maintaining this documentation across a large client base is a significant operational undertaking. For most firms, the cost of that documentation infrastructure approaches or exceeds the cost of simply obtaining authorisation.

For the current state of MiCA CASP authorisations across the EEA and the regulatory position of specific major exchanges, see MiCA compliance deadline tracker and MiCA CASP authorisation requirements.

Forseti monitors MiCA supervisory developments, ESMA guidance, and national competent authority enforcement signals continuously, anchored to verified official sources. Start for free.

See also: What is MiCA and who does it affect? and non-EU firms entering the EU financial market: regulatory requirements explained.