New ESMA Guidelines: no more circumventing the reverse solicitation rule?

On 26 February 2025, the European Securities and Markets Authority (ESMA) published the official language versions of its guidelines concerning the circumstances under which a third-country firm is deemed to be soliciting clients established or located in the European Union. The guidelines also outline supervisory practices aimed at detecting and preventing the circumvention of the reverse solicitation exemption under the Markets in Crypto-Assets Regulation (MiCAR).

What is reverse solicitation under MiCAR?

Article 61 of MiCAR introduces an exemption from the licensing requirement for third-country firms where a client established or located in the EU initiates a relationship entirely on their own exclusive initiative in order to access crypto-asset services. In such cases, the third-country firm may provide the specific service without a license, including ancillary activities strictly related to the provision of that service.

However, the exemption is subject to a significant limitation. If the third-country firm – or any person acting on its behalf or with which it has close ties – engages in any form of marketing, promotion, or advertising targeted at clients or prospective clients in the EU, the service will no longer be deemed to have been provided at the client’s exclusive initiative. This applies irrespective of any contractual clauses or legal disclaimers to the contrary.

Moreover, invoking the exemption does not entitle the third-country firm to offer new categories of services or to trade in new types of crypto-assets with the client. The exemption is narrow and strictly limited to the specific service originally requested by the client.

Where does client initiative end and solicitation begin?

According to the guidelines, any form of promotion, advertisement, or offering of services to clients in the EU—regardless of the communication channel (e.g., online ads, social media, trade fairs, emails, influencers, or affiliate campaigns)—may constitute solicitation. Therefore such activities fall outside the reverse solicitation exemption. ESMA underscores that the client’s exclusive initiative is a very narrowly construed exception and must be interpreted restrictively.

Reverse solicitation is an exception, not a strategy

The guidelines provide detailed examples of what may constitute solicitation and emphasise that the reverse solicitation exemption is incidental, must not be misused, and does not permit the offering of new services or types of crypto-assets.

Our law firm advises clients on navigating the MiCAR framework safely and assessing whether their business model complies with the regulation. Contact us if you intend to access the EU market in a compliant manner and wish to avoid unnecessary regulatory risk.