Reverse solicitation, also known as reverse enquiry, occurs when a client independently approaches a service provider without any prior solicitation or marketing by the provider. Under Article 61 of MiCAR, crypto-asset services provided by a third-country firm to a client established or situated in the Union do not require prior authorisation, provided the relationship was initiated exclusively on the client’s own initiative. This mirrors the regime set out in the EU's Markets in Financial Instruments Directive II (MiFID II), from which the MiCAR exemption is conceptually derived.
MiCAR makes clear that the exemption is not available where the third-country firm solicits or promotes its services in the EU, either directly or through third parties acting on its behalf or with close links to it. Any form of advertisement, marketing, or promotional activity targeting EU clients may be sufficient to disqualify reliance on the reverse solicitation regime.
In February 2025, the European Securities and Markets Authority (ESMA) issued its Guidelines on reverse solicitation under MiCAR. These Guidelines, while not legally binding, have been formally endorsed by several national regulators and now form the key reference for determining what constitutes reverse solicitation. ESMA’s interpretation is deliberately strict. Notably, the Guidelines emphasize that third-country firms cannot rely on standard disclaimers or contractual clauses to demonstrate that a service was requested on the client’s own initiative. The facts must demonstrate that no solicitation occurred. ESMA also warns that firms may not offer additional products or services beyond what the client initially requested.
In Spain, the CNMV follows the ESMA framework and actively monitors for signs of solicitation, including language use, domain names, and mobile app activity. Each Member State may place emphasis on different indicators, and what is acceptable in one country could trigger scrutiny in another.
Olivia López-Ibor Jaume