Reverse solicitation under MiCA

A provider established outside the European Union may serve a client situated in France without a MiCA authorisation, on one condition: that the client approached it on its own initiative, and for the service requested alone. ESMA, and the AMF (Autorité des marchés financiers, the French financial markets regulator), which has applied its guidelines since 10 May 2025, read this exemption strictly. ORWL Avocats helps foreign providers and their corporate and institutional clients in France to map its limits, to prove the client’s initiative and, where needed, to close French accounts.

Article 61 of the MiCA Regulation, the reverse solicitation provision, is the only route by which a third-country firm may provide a crypto-asset service to a client in the Union without authorisation. Misread, it serves as a pretext for mass offerings that the AMF fights, not least through its blacklist. Properly delimited, it allows real requests to be met: a fund looking for a counterparty outside the Union, a company that wants one specific service, a client that chooses a provider it already knows.

What does Article 61 of MiCA allow?

As a rule, only a firm established in the Union and authorised as a crypto-asset service provider (CASP) may provide these services in the Union. Article 61 of the MiCA Regulation sets out an exception: where a client established or situated in the Union requests, at its own exclusive initiative, a service from a third-country firm, that firm may provide it without authorisation.

Three conditions must be met:

• the initiative comes from the client alone: neither the provider, nor an entity of its group, nor a person acting on its behalf has solicited it;
• the service provided is the one the client requested, or a service of the same type offered in the context of that request;
• the provider can establish both points by facts, not by a clause in its contract.

The last point is decisive. The Regulation expressly disregards any clause or disclaimer stating that the service is provided at the client’s initiative. A tick box at account opening proves nothing if the client came across the provider through an advertisement.

The exemption covers third-country firms only. A CASP authorised in another Member State serves France under the passport: ORWL Avocats also advises these providers on notifying their MiCA passport.

ESMA set out the scope of Article 61 in guidelines published on 17 December 2024. The AMF has incorporated them into its doctrine (position DOC-2025-03). Both read it as a narrow exception, which is not presumed and cannot be used to circumvent MiCA.

What makes the exemption fall away?

ESMA gives solicitation a broad meaning, whatever the medium. It covers in particular:

• online advertising, banners and campaigns targeted at users in the Union, including retargeting;
• a website or an app in French, unless the provider comes from a French-speaking country or has its client base there;
• search targeting of a Member State: a .fr domain name, an /fr section, geotargeted ads;
• influencers, affiliates and introducers who direct their audience to the provider, whether paid or not;
• sponsorship of European or national sporting events, trade fairs and invitations;
• training courses and educational content that lead to the provider’s website or app;
• group communications that do not allow the entity authorised in the Union to be distinguished from the entity established outside it.

Brand advertising counts too, even without a specific offer. No contract is needed between the provider and the person promoting it: a link to its website, a promotional code or the display of its logo are indications that the person is acting on its behalf, and any payment is a strong one. Only unsolicited reviews remain outside the scope, where the provider has neither prompted, encouraged nor facilitated them.

Advertising by a foreign provider in France is also subject to specific French rules. ORWL Avocats also advises providers on the compliance of their communications in France.

Does the initiative really come from the client?

The AMF assesses all the facts of each situation.

How far can you serve a client who came to you?

The exemption covers the service requested and the relationship it entails. A custody or trading account opened at the client’s request may therefore last over time.

It does not, however, allow new products to be marketed. The provider may only offer crypto-assets or services of the same type as those requested, and only in the context of the initial request. An offer sent a month later, a notification inviting the client to place further orders or a bundle of services fall outside the exemption.

ESMA reads the “same type” narrowly. The following are not of the same type, for example:

• a utility token, an asset-referenced token (ART) and an e-money token (EMT);
• two EMTs backed by different currencies;
• liquid and illiquid crypto-assets;
• crypto-assets held or transferred on different technologies;
• a crypto-asset with an identifiable offeror and one without.

It is for the provider to classify its products, on a grid fine enough not to widen the exemption, and to keep the history of each relationship: who asked for what, and when.

Corporate and institutional clients in France: what the exemption allows

The strongest requests often come from companies and funds. A manager looks for a counterparty outside the Union, a company wants a service it cannot find with a European provider, a treasury team chooses a provider it already uses elsewhere. The exemption may then apply, on the same conditions as for an individual: the MiCA Regulation draws no distinction by category of client, and ESMA declined to create one.

The corporate client also has an interest in documenting its approach:

• keeping a record of its request: request for proposals, email, note of the first contact;
• staying within the scope requested and refusing bundled offers;
• checking its own obligations if it is itself regulated: a regulated entity of the Union may not redirect its clients to a third-country provider, even within its group, and a CASP routing orders to a platform outside the Union must consider whether that platform is providing services in the Union.

ORWL Avocats acts on both sides: for the provider, which must be able to justify every French relationship, and for the corporate client, which wants to be sure that its contract does not expose it. Where the need becomes regular, the question of CASP authorisation for a European subsidiary arises, and the firm advises on that route as well.

Our method: proving the client’s initiative

Our position is clear. The exemption is narrow, but it remains workable within a defined perimeter: one-off requests, identified clients, often corporate ones, evidence kept with rigour. It does not allow the French retail market to be served at scale; that requires an authorisation or a passport.

We check that the provider stays within that perimeter and can demonstrate it. We start from its acquisition channels, not from its terms and conditions.

The AMF does not wait for complaints to act. ESMA’s guidelines invite the authorities to detect providers that target their market: national telephone numbers and domain names, advertising and social media tracked by monitoring tools, consumer surveys, exchanges with other authorities, reports from clients. The arrangements must therefore withstand an examination conducted from the outside, like the Authority’s.

We work in English with your teams and, where needed, with the AMF, which also accepts exchanges in English. We coordinate our analysis with your home-country counsel and, where onboarding requires it, with your anti-money laundering framework.

Closing the accounts of French clients

Sometimes the exemption does not hold: the provider has advertised in France, it has opened accounts in numbers, or the AMF is asking questions. Sometimes it simply decides to leave the French market. In every case the exit must be orderly: an abrupt closure harms clients and weakens the provider’s position before the Authority.

ESMA accepts two precautionary measures for a provider in doubt: taking on no new clients from the Union and blocking access to its services from the Union, on its website as in the app stores. They open the exit; they do not complete it. We organise it in six stages.

A transfer to an authorised provider protects clients better than a simple withdrawal: it spares them selling their assets in a hurry. We help the provider identify the CASPs able to take on these clients and frame the discussions with them.

If the AMF has already added the provider to its blacklist, the plan for exiting French clients becomes the centrepiece of the dialogue with the Authority. ORWL Avocats also advises providers on getting off the AMF blacklist.

A provider that then wants to serve France on a lasting basis can have a subsidiary authorised in the Union and use the passport. The firm advises foreign providers on each of the routes to the French market.

Why work with ORWL Avocats?

Since 2018, ORWL Avocats has advised, before the AMF, platforms and brokers established outside the Union, groups setting up a European entity and funds investing in crypto-assets. The firm has advised several third-country providers on the reverse solicitation exemption, from the analysis of their exposure to the French market to the closure of their French accounts. It is ranked in Chambers FinTech and by Leaders League.

A lawyer brings what a consultant cannot: the legal qualification of each channel and each relationship, professional secrecy over a review that often reveals weaknesses, and liability for the advice given. Independent of any network, the firm works with the client’s existing counsel abroad and opens the local contacts that save time on the French market.

A partner leads every matter.