Navigating MiCA’s Reverse Solicitation Framework: What Non-EU Operators Must Know

Article 61 of MiCA (Regulation (EU) 2023/1114 on Markets in Crypto-Assets) provides an exemption from the MiCA licensing requirement for the provision of crypto-asset services to clients based in the EU. According to Article 61(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 rationale behind such an exemption is to ensure individuals’ liberty to request and receive crypto-assets services by a third-country firm on their own exclusive initiative. A third-country firm refers to entities that operate outside EU and have not been granted an authorisation under the MiCA regulation. 

In this article, we cover the situations that fall under Article 61, while taking into account the guidelines on the application of Article 61 issued by ESMA on 26.2.2025 and ESMA’s opinion published on 31.7.2024.

DEFINING SOLICITATION

As obvious from the direct wording of the exemption of Article 61, it only applies if the provision of services happens at the exclusive initiative of the client, and therefore solicitation towards EU by a third-country firm without a MiCA-authorisation is not permitted. Consequently, one of the key interpretations is to distinguish the difference between client’s exclusive initiation and solicitation. Defining clients “own exclusive initiation” and “solicitation” is crucial for detecting whether the provision of crypto-asset services by a third-country based CASP is compliant with Article 61 of MiCA. 

Firstly, solicitation covers all forms of marketing, whether direct or indirect. This means that promotions, advertisements, and general brand-building activities may all constitute solicitation. ESMA has stated that the concept of client solicitation should be interpreted broadly and in a technology-neutral manner. Only purely educational materials or genuinely independent reviews fall outside the scope of solicitation, provided they do not contain any promotional elements.

Secondly, solicitation may occur irrespective of the person acting or initiating the client contact on behalf of the third-country firm. Marketing by sponsorships, affiliates or other third parties does not directly affect the interpretation of whether the third-country CASP has conducted solicitation. Therefore, solicitation may occur by the third-country firm itself or by a person acting on the firm’s behalf. ESMA’s guidelines note that national competent authorities (“NCAs”) should consider all the facts and circumstances of the case to determine whether a third-country firm is soliciting clients established or located in the Union. 

As the concept of solicitation is defined broadly, assessed on a case-by-case basis, and may occur through a third party acting on the firm’s behalf, ESMA has identified a set of indicators that may suggest the presence of solicitation. For example the following aspects may indicate that a person is acting on behalf of a third-country firm in terms of solicitation:

• the direction of the audience to the third-country firm’s website; 
• the provision of the means of access to the services offered by the third-country firm; 
• the offering of promotional deals for the services of a third-country firm or;
• displaying of the third-country firm’s logo.

ESMA underlines that any benefit, monetary or non-monetary, received by a person acting on behalf of the CASP, is a strong indicator that the actions related to advertising or marketing should be considered as solicitation via third party. At the same time, the absence of a formal contract between the party conducting the actual acquiring of clients and the third-country CASP does not  automatically mean that solicitation has not taken place. Therefore, the assessment is ultimately based on the substantive circumstances rather than on formal contractual terms.

EXLUSIVE INITATIVE OF THE CLIENT

If crypto-asset services or other activity is provided at the exclusive initiative of the client, a third-country firm should not be deemed to solicit clients and therefore the firm’s actions are compliant with Article 61 of MiCA. Contrary to the definition of solicitation, the concept of exclusive client initiative is interpreted in a restrictive manner. Assessing whether the client has exclusively initiated the provision of services by the third-country firm is based on facts, and thus, the establishment of solicitating cannot be circumvented through contractual arrangements or disclaimers. The third-country firm providing the crypto-asset services to the client should maintain client records to be able to demonstrate that the provision of crypto-asset services by the firm was initiated exclusively at the client’s own initiative. 

While the concept of exclusive client initiative is interpreted narrowly in the ESMA’s guidelines, Article 61(2) of MiCA provides an opportunity for a third-country firm to market crypto-assets or crypto-asset services or activities of the same nature to the client that’s already engaged, provided the relationship has been previously initiated by the client. Acquiring a client through that client’s own exclusive initiative opens the gateway for providing marketing to that client. However, such marketing may be regarded as permissible on when it is limited to services that are similar to those the client has already engaged in. 

ESMA has clarified which crypto-assets and crypto-asset services can be considered of a ‘similar type’ to those the client initially has engaged in based on their own exclusive initiative. The similarity must be assessed on a case-by-case basis, taking into account the categories of the crypto-assets or crypto-asset services or activities offered, and the risks attached to those assets, services or activities. The categorization of assets, services or activities shall be detailed enough to allow the assessment of similarity. ESMA has listed crypto-assets that should not be included in the same category e.g. not be viewed as similar to one another. The following list compiled by ESMA should not be read in contrario, meaning that the fact that certain classes are listed as not similar does not imply that all other combinations are automatically to be treated as similar:

• utility tokens, asset-referenced tokens or electronic money tokens;
• crypto-assets not stored or transferred using the same technology;
• electronic money tokens not referencing the same official currency;
• asset-referenced tokens based mostly on FIAT currencies and asset-referenced tokens having significant crypto-currency ponderations;
• liquid and illiquid crypto-assets;
• crypto-assets other than asset-reference tokens and electronic money tokens with a non-identifiable-offeror and crypto-assets other than asset-reference tokens and electronic money tokens with an identifiable offeror.

Esma has noted that this list is not intended to be exhaustive, but it provides useful tools for assessing the similarity of the crypto-asset services offered. 

ARTICLE 61 IN RELATION TO BROKER MODELS

As described, the exemption in Article 61 should be interpreted narrowly, and any misuse of the rule should be prevented. ESMA has stated that NCAs must ensure that Article 61 is not used to obtain a ‘legal cover’ in the Union for third-country firms that attempt to solicit clients in the Union through MiCA licensed entities. ESMA has emphasized that NCAs should carefully consider the organizational structure and marketing policies of any entities that apply for authorization under MiCA. The risk of exploiting Article 61 as a legal cover for third-country firm is particularly pronounced in group structures where one of the companies belonging to a group applies for authorization but seeks that authorization for brokerage activities (e.g., transmission of orders) to be used, in fact, for soliciting clients established or situated in the Union and thus providing services in the Union on behalf of a company providing a non-EU execution venue. 

Such a consideration should cover all facts and circumstances of the application. To help NCAs with such oversight duties, ESMA has identified a set of factors that may be regarded as ‘very likely indicators’ of unlawful solicitation and the illegal provision of services in the Union by a third-country platform. An illegal framework might include the following signals:

• the EU-authorised broker systematically channels client orders to a group execution venue located outside the Union;
• the broker has not concretely assessed other suitable execution venues, and such an arrangement lacks convincing justification;
• the broker leans heavily on the reputation and brand of the non-EU exchange, to the point where EU client struggle to distinguish the broker’s services from those of the group execution venue;
• the broker’s revenue from EU clients is very limited, or its revenue flows deviate significantly from what would be expected in a normal relationship between an independent broker and an independent execution venue.

The list of indicators should not be interpreted to mean that the presence of a single indicator definitively establishes illegal activity. However, such arrangements have been identified as strong red flags for a prohibited framework.

CONFLICTS OF INTERESTS AND BEST EXECUTION IN BROKER MODELS

The assessment of Article 61 in the context of brokerage models is closely linked to Article 72 on conflicts of interest and Article 78 on best execution requirements. The group structure usually incentivizes the broker to internalize order flow by routing orders to the third-country execution venues of the group even when it might be against client’s best interests. 
This risk also threatens compliance with the best execution requirements laid down in Article 78 of MiCA. Where an EU broker is part of the group, it must continuously and objectively assess whether routing client orders to group entities is compatible with Article 78 and genuinely reflects the principle of best execution. If client orders are routed to third-country venues without this being demonstrably the best execution strategy for the client, the arrangement is likely to infringe Article 78 in addition to Article 61, under which it may be regarded as a structure designed primarily for client acquisition on behalf of a third-country firm. 

ESMA has also recalled that, under Article 66 of MiCA, CASPs must act honestly, fairly and professionally in accordance with the best interests of their clients. This more general responsibility operates as a backstop for arrangements masked as permitted exemptions falling under Article 61 but at the same time infringing Articles 72 and 78 by soliciting and routing EU customers to third-country execution venues in circumstances that are not genuinely best for the clients. 

FINALLY

The exemption allowing third-country firms to provide services to EU-based clients without a MiCA license must be understood in a strict manner, as both solicitation and the persons who may be regarded as soliciting are defined very broadly in ESMA’s guidelines. Prohibited solicitation may be carried out directly by a third-country firm or indirectly by a third party acting on behalf of a crypto-asset service provider established outside the EU. At the same time, the client’s exclusive initiative is interpreted in a very restrictive manner, which further tightens the scope of the exemption. Whether solicitation has taken place is assessed on case-by-case basis, taking into consideration all relevant facts and circumstances.

However, when the exemption becomes applicable, Article 61(2) opens an opportunity for the third-country firm to offer similar crypto-assets, services or activities that the client has been provided with in the first place. 

At Nordic Law we offer deep expertise in crypto-asset markets, regulatory frameworks, and the specific needs of industry participants. We have successfully advised clients across the crypto sector on licensing processes, legal assessments of operational models, and a wide range of assignments related to the legal framework around crypto-assets. Our experience also extends to matters involving the taxation of crypto-assets, ensuring clients receive comprehensive and forward-looking legal support. 

Should you have any questions on legal matters related to crypto-assets and crypto-services, our team would be pleased to assist. 

Our Junior Trainee Rufus Rusanen took part in writing this article.