Reverse solicitation: when is it applicable?

Can a crypto company provide services to an EU-based client without holding the relevant EU authorisation? In limited circumstances, yes – but only where the client genuinely initiates the relationship. This principle is known as reverse solicitation. It remains a narrow exception to licensing requirements, and EU regulators interpret it strictly, particularly under the MiCA Regulation. Where is the line between a legitimate client inquiry and active solicitation? This article explains when reverse solicitation may apply in 2026, what evidence businesses need to preserve, and which marketing activities can trigger EU licensing requirements.

What is reverse solicitation?

Reverse solicitation is a legal mechanism whereby the initiative to establish a business relationship comes from the client, not from the provider of financial or crypto services. In such cases, a third-country firm may be able to provide the specific service requested by the client without obtaining authorisation in the client’s jurisdiction, provided the conditions of the applicable regulatory framework are met.

Under Article 61 of MiCA, this exemption applies where a client established or situated in the EU initiates the provision of a crypto-asset service at their own exclusive initiative. If the company, an affiliated entity, or another person acting on its behalf has solicited the client in the EU, the reverse solicitation exemption does not apply. Contractual disclaimers stating that the client acted on their own initiative cannot override the actual circumstances.

Key features of reverse solicitation

The exemption is interpreted very narrowly. The ESMA Guidelines on reverse solicitation under MiCA confirm that it should be treated as an exception and must not be used to circumvent MiCA authorisation requirements.

The main indicators are:

1. The client initiates contact independently and requests the service without prior solicitation;
2. The company does not use targeted advertising, email campaigns, direct outreach, or other promotional activity aimed at that client or the relevant EU market;
3. The client’s initiative is properly documented through inquiry forms, emails, website logs, timestamps, CRM records, or similar evidence;
4. The exemption is limited to the service initiated by the client and does not give the company a general right to market additional crypto-asset services.

MiCA expressly states that a client’s own exclusive initiative does not allow a third-country firm to market new types of crypto-assets or crypto-asset services to that client.

Reverse solicitation may therefore be available to non-EU firms in limited circumstances, but incorrect reliance on the exemption can expose a business to licensing and enforcement risks.

Legal basis for reverse solicitation in the EU

The concept of reverse solicitation has long existed in EU financial regulation. Under Article 42 of Directive 2014/65/EU (MiFID II), a third-country firm may provide an investment service or activity without local authorisation where an EU client initiates that service at their own exclusive initiative. The exemption does not give the firm a general right to market additional investment services or products to that client.

For crypto-asset services, a separate rule now applies under Article 61 of MiCA. A third-country firm may rely on reverse solicitation only where the EU client initiates the crypto-asset service entirely on their own initiative. ESMA’s Guidelines on reverse solicitation under MiCA confirm that this exception must be interpreted narrowly and cannot be used to circumvent the EU authorisation regime.

Reverse solicitation under MiFID II vs MiCA

The underlying principle is similar, but the regimes cover different activities:

1. MiFID II applies to investment services and activities involving financial instruments;
2. MiCA applies to crypto-asset services within its regulatory scope;
3. Under both regimes, the client must genuinely initiate the relationship;
4. The exemption is limited and does not create a general passport for subsequent marketing;
5. Firms must be able to demonstrate that the client’s initiative was genuine and not the result of prior solicitation.

For crypto businesses, this distinction is particularly important when determining whether a MiCA CASP license is required. A provider cannot rely on MiFID II reverse solicitation principles as a substitute for the specific requirements established under MiCA.

What may constitute solicitation?

ESMA takes a broad view of solicitation and looks at the substance of the interaction rather than contractual wording alone. Relevant indicators may include:

• Geo-targeted advertising aimed at EU users;
• Paid or organic social media campaigns directed at EU audiences;
• Influencers or affiliates acting on behalf of the provider;
• Targeted emails, calls, or other direct outreach;
• Websites or landing pages designed specifically to attract clients in particular EU markets.

The use of an EU language alone is not necessarily decisive. ESMA looks at the overall context, including targeting, distribution strategy, audience, and other indications that the provider was actively seeking EU clients.

Companies planning to provide crypto services in the EU should therefore assess their marketing model alongside their broader MiCA compliance framework rather than treating reverse solicitation as a standalone exemption.

When can reverse solicitation be applied?

For reverse solicitation to be legally valid, the client must genuinely initiate the relationship without prior solicitation by the service provider. Under MiCA, this exception is interpreted narrowly, and the company should be able to demonstrate that the client acted at their own exclusive initiative. ESMA also stresses that the assessment should be based on the actual facts, not only on contractual wording or disclaimers.

The key compliance criteria include:

1. The client contacts the company independently, without responding to targeted advertising, direct outreach, or another form of solicitation.
2. The company does not use marketing campaigns, affiliates, influencers, or other persons acting on its behalf to attract that client in the EU.
3. The client’s request relates to the specific crypto-asset service they initiated, rather than creating a general right for the provider to market additional services.
4. The company preserves evidence of the client’s initiative, including inquiry forms, emails, timestamps, CRM records, website logs, and other relevant data.
5. The provider can demonstrate the chronology of the relationship and show that the client’s request preceded any relevant promotional activity.

ESMA’s Guidelines on reverse solicitation under MiCA specifically state that third-country firms should be able to keep records tracking the relationship with the client and showing whether the client took the initiative to receive crypto-asset services.

A client declaration stating that they acted on their own initiative may support the evidence file, but it should not be relied on as the only proof. MiCA expressly provides that contractual clauses or disclaimers cannot override facts showing that solicitation actually took place.

What evidence proves genuine client initiative?

A strong evidence trail may include:

• The original inquiry or completed contact form;
• Email or messenger correspondence showing the first contact;
• Date and time of the request;
• IP, website, or system logs where relevant;
• CRM records documenting the interaction;
• Source-of-lead information;
• Confirmation that there was no prior direct marketing or outreach;
• Internal records showing how the request was assessed before the service was provided.

The goal is not simply to collect documents, but to reconstruct a clear timeline showing that the relationship genuinely began with the client.

For businesses operating across multiple markets, these controls should form part of a broader CASP platform assessment, especially where the platform accepts clients from the EU but does not hold a local MiCA authorisation.

When reverse solicitation is unlikely to be accepted

Reverse solicitation is unlikely to be accepted where the provider’s own marketing or distribution activity contributed to the client relationship. Regulators assess the overall context, including targeting, localisation, advertising channels, and the chronology of contact.

Common risk indicators include:

1. Geo-targeted advertising aimed at users in EU Member States;
2. Country-specific landing pages, offers, or promotional campaigns;
3. Outreach through email, messengers, affiliates, or influencers;
4. Localised website content combined with EU-focused marketing or payment options;
5. Social media content or campaigns designed specifically to attract EU clients.

A translated website or content in an EU language is not automatically sufficient to prove solicitation. However, when localisation is combined with targeted promotion, EU-specific offers, or direct outreach, reliance on reverse solicitation becomes much harder to justify. ESMA’s Guidelines on reverse solicitation under MiCA require firms to assess the substance of client acquisition rather than rely on formal disclaimers.

For companies using brokers, affiliates, or other intermediaries, the risk is also relevant. Promotional activity carried out on behalf of the provider may still be attributed to the firm. Businesses working through third parties should therefore review whether their model requires specific crypto brokers licences or other authorisations.

Legal consequences for violating reverse solicitation

If a third-country provider actively solicits EU clients but relies on reverse solicitation to avoid authorisation, the activity may be treated as an unauthorised provision of regulated services.

Under MiCA, potential consequences include:

• Orders to stop providing the relevant services;
• Publication of the infringement by the competent authority;
• Inclusion in ESMA’s public register of entities providing crypto-asset services in breach of Articles 59 or 61;
• Administrative fines and other measures under national law;
• Additional sanctions where national legislation provides for criminal liability.

For unauthorised crypto-asset services falling under Article 59, MiCA requires Member States to provide substantial administrative penalties. For legal persons, the applicable maximum must be at least EUR 5 million or 5% of annual turnover, depending on the infringement and national implementation.

Enforcement example: AMF decision

An earlier French case illustrates how regulators distinguish genuine client initiative from active marketing. In 2022, the AMF Enforcement Committee fined Auvergne Investissement Hôtels EUR 150,000 and its chairman EUR 50,000, while also banning him from acting as a financial investment adviser for five years. The firm had marketed unauthorised German alternative investment funds to 12 clients.

Importantly, the AMF accepted reverse solicitation in relation to a 13th client, because that investment had been made at the client’s exclusive initiative. This shows that regulators assess the actual circumstances of each relationship rather than relying only on declarations or contractual wording.

How to use reverse solicitation safely in practice

Reverse solicitation should be treated as a narrow exception, not as a market-entry strategy. Companies relying on it should be able to prove that the client initiated the relationship independently and that no prior solicitation took place.

Key controls include:

• Document the client’s first contact and the exact service requested;
• Retain emails, CRM records, timestamps, website logs, and source-of-lead data;
• Avoid targeted EU marketing, affiliate campaigns, or direct outreach before the client request;
• Assess whether the requested service falls within MiCA or another licensing regime;
• Prevent staff from offering additional services beyond the scope initiated by the client;
• Review reverse-solicitation cases through compliance or legal teams before onboarding.

Reverse solicitation should also be reflected in internal Terms & Conditions and client-onboarding procedures, but contractual wording alone is not enough. The actual acquisition process and evidence trail must support the client’s own initiative.

How Key2Law helps companies comply with reverse solicitation rules

Reverse solicitation is defensible only when the client’s initiative is genuine and the company can prove it. Key2Law team helps crypto and financial businesses assess whether their client acquisition model, marketing activity, and onboarding procedures are compatible with MiCA and other applicable EU rules.

Our team can help you:

• Audit marketing, sales, affiliate, and client acquisition channels;
• Assess whether a specific client relationship may qualify as reverse solicitation;
• Develop internal procedures for documenting client-initiated requests;
• Review website content, onboarding flows, disclaimers, and Terms & Conditions;
• Prepare compliance policies and staff guidance for EU-facing activities;
• Assess licensing risks and determine whether MiCA Compliance or another authorisation is required;
• Support companies in communications with regulators where questions about unauthorised solicitation arise.

If your company serves or plans to serve EU-based clients, reverse solicitation should not be used as a substitute for proper regulatory analysis. Contact Key2Law to review your client acquisition model, evidence trail, and licensing exposure before regulatory risks arise.

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This article is provided for general informational purposes only and does not constitute legal or regulatory advice. Reverse solicitation rules may vary depending on the type of service, jurisdiction, client circumstances, and applicable licensing regime. Businesses should obtain professional advice before relying on reverse solicitation as a basis for providing services to EU clients.