MiCA Reverse Solicitation: How a Non-EU Crypto Firm Can Still Serve EU Clients

Now that the Markets in Crypto-Assets Regulation applies in full and the national transitional periods have expired, offshore crypto exchanges, brokers and wallet providers tend to hear one of two things: “you cannot touch EU clients any more” or “just add a disclaimer”. Both are wrong. The regulation leaves a real, if narrow, space for an unlicensed third-country firm to serve Europeans — on condition that the initiative is truly the client’s. This article explains where that space begins and ends. Where a bank, payment provider or platform partner wants the answer in writing for your particular model, Eesti Firma issues legal opinions on Article 61 reverse solicitation — more on that at the end.

What Reverse Solicitation Means Under MiCA

Reverse solicitation — sometimes called reverse enquiry — is the situation in which a client approaches a service provider entirely on their own, unsolicited, without any marketing or prompting by the provider. The concept comes from EU investment law (MiFID II), and MiCA carries this own-initiative exemption into crypto in Article 61.

It matters because MiCA applies by the location of the client, not the company. The regulation covers ten crypto-asset services, from exchange and custody to transfers and advice, and under Article 59 anyone providing them to clients in the EU on a professional basis must hold a MiCA authorisation as a crypto-asset service provider in a member state, valid across the European Economic Area. There is no third-country equivalence regime: a home-country registration — a money services business licence or a VASP registration abroad — gives no right to serve Europeans. A non-EU exchange, broker or wallet provider with EU-based users is therefore inside MiCA’s territorial scope unless Article 61 takes it out.

Article 61(1) disapplies the licence requirement in one case. Where a client established or situated in the EU initiates, at their own exclusive initiative, a crypto-asset service from a third-country firm — a firm that would need a MiCA licence if its head office or registered office were in the EU — the requirement does not apply to that service for that client, including the relationship built around it.

The article then closes the obvious gaps in the text of the regulation itself. If the firm — or an entity acting on its behalf, having close links with it, or anyone acting for such an entity — solicits clients or prospective clients in the EU, regardless of the means of communication, the service is not at the client’s own initiative. That holds notwithstanding any contractual clause or disclaimer saying otherwise. And a client’s initiative does not entitle the firm to market new types of crypto-assets or services to that client.

ESMA, the EU markets regulator, describes Article 61 as a prohibition on soliciting European clients with a narrow exception, and its reverse solicitation guidelines spell out what that means in practice. The exemption works client by client: it is not a status the firm holds, but a defence for each client-initiated relationship.

What a Non-EU Crypto Firm May Do Without a MiCA Licence

A third-country crypto provider that does not target the EU can, without MiCA authorisation:

• Accept a European customer who found you on their own — through their own search, a friend’s recommendation or a review you had no hand in — answer their enquiry and provide the service they asked for, including the ongoing relationship it involves.
• Show them crypto-assets or services of the same type at that moment. A client who asks to buy one token may be shown similar tokens as part of that transaction.
• Keep a jurisdiction-neutral website in a language customary in international finance, without EU domains, EU subdirectories, EU-targeted SEO or localisation for European markets.
• Publish purely educational material and take part in industry events, as long as the audience is not directed to your services, your website or a sign-up form.
• Geo-block EU IP addresses and keep your app out of EU app stores as a precaution. ESMA recognises this as evidence that you are not soliciting through your website or app; MiCA does not require it.

What Counts as Solicitation: ESMA’s Examples

ESMA reads solicitation broadly and technology-neutrally. Any of the following will be treated as soliciting clients in the EU and takes the affected relationships outside the own-initiative exemption:

Three points sit behind the table. A reverse solicitation disclaimer in the terms of service, or a tick-box at sign-up, does nothing on its own: the regulation says so expressly, and ESMA treats the question as one of fact. Who solicits does not matter: a contract, an informal understanding or a benefit of any kind ties the third party to you, and even the absence of payment does not rule it out. And “same type” is narrow: utility tokens, asset-referenced tokens and e-money tokens are different types, as are liquid and illiquid assets. Same-type offers are permitted only in the context of the original request, never as a later campaign.

Reverse Solicitation Policy and Records: Onboarding an EU Client Step by Step

The exemption is decided on facts, and the facts must be on file before the account goes live. A workable, MiCA-compliant onboarding procedure for a non-EU crypto provider looks like this:

1. Log the first contact — date, channel, exactly what the person asked for (so later offers can be checked against it), and how they say they found you.
2. Run an onboarding questionnaire asking how the client learned of the firm and whether any promotion, affiliate or referral was involved.
3. Obtain a client own-initiative declaration — and treat it as one piece of evidence, not the whole case. A declaration cannot cure advertising that reached the client first.
4. Have compliance review the file against your marketing records and partner list, and sign off before activation.
5. Wait for the client to ask before providing anything new. If they want another service, the initiative must again be theirs.

Behind that procedure sit three documents: a written reverse solicitation policy for EU/EEA clients (the document banks and partners will ask to see), a marketing and geo-targeting policy with controls that actually run, and an affiliate and introducer policy that bars partners, under any form of agreement, from promoting you to EU persons. European business should stay incidental to a firm directed at its home market, not become a channel of market access.

When Reverse Solicitation Is Not Enough

National authorities are expected to look for EU phone codes and domains, monitor marketing on social media, run consumer surveys and follow up complaints and whistle-blower reports. A firm whose growth depends on European volume cannot build it on Article 61: the exemption does not scale, and no policy set will make it. For such firms the routes are a MiCA licence in a member state, distribution through an authorised EU partner, or restricting EU access.

Confirming Your Reverse Solicitation Position in Writing

Once a third-country firm is organised along these lines, the remaining question is usually external: a bank, payment institution or platform counterparty asks how it can lawfully serve European clients without a MiCA licence. A short reverse solicitation opinion letter answers it for the firm’s specific model — whether its services are crypto-asset services at all, whether it is a third-country firm with no EU footprint, whether its policies and onboarding workflow meet Article 61 and ESMA’s guidelines, and on what operating conditions the conclusion depends. Eesti Firma has issued such opinions to non-EU crypto firms whose counterparties required them. Where the facts point towards a licence instead, we say so, and can draft the policy set or handle the CASP authorisation; our MiCA guide and MiCA FAQ cover that route.

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