With the expiry of the final national transition periods for the application of the Markets in Crypto-Assets Regulation (MiCAR) on 1 July 2026, the EU-wide harmonised legal framework for crypto-asset services will become fully applicable. In principle, third-country providers may only provide crypto-asset services to clients in the European Economic Area (EEA) if they are authorised as Crypto-Asset Service Providers (CASP).
Against this backdrop, Article 61 of MiCAR is coming increasingly into focus. This provision sets out the conditions under which third-country providers may, in exceptional cases, provide crypto-asset services to clients in the EEA without a MiCAR authorisation, provided that the initiative for the service in question originates exclusively from the client. This exception is known in financial markets law as ‘reverse solicitation’.
Key Takeaways
- Once the MiCAR transition periods expire on 1 July 2026, third-country providers will, in principle, require a MiCAR authorisation to provide crypto-asset services in the EEA.
- Article 61 of MiCAR sets out the conditions under which third-country providers may provide crypto-asset services to clients in the EEA without a MiCAR authorisation.
- The initiative to establish a business relationship must come exclusively from the client.
- Marketing and sales activities directed at clients in the EEA may preclude reliance on Article 61 of MiCAR.
- The ESMA guidelines clarify the scope of application of Article 61 of MiCAR and promote consistent supervisory practice.
- Third-country providers should review their sales and marketing processes.
Good to know
Reverse solicitation does not provide an alternative route to the EEA market. Rather, the decisive factor is that the initiative to use the relevant crypto-asset service must actually and exclusively come from the client. Even marketing or sales activities may result in a third-country provider being unable to rely on Article 61 of MiCAR. Whether these conditions are met must always be assessed on the basis of the specific circumstances of the individual case.
Scope of application of MiCAR in the EEA
MiCAR has, in principle, been fully applicable in the European Union since 30 December 2024. By Decision No 41/2025 of the EEA Joint Committee, the Regulation was incorporated into the EEA Agreement. The incorporation took effect in the EEA on 24 June 2025, following the fulfilment of the constitutional requirements. Consequently, the MiCAR framework also applies in the EEA-EFTA states of Liechtenstein, Iceland and Norway, subject to the adjustments required under EEA law.
In Liechtenstein, the regulatory framework was supplemented in particular by the EEA MiCA Implementation Act. This came into force on 1 February 2025. The Liechtenstein Financial Market Authority (FMA) is the competent supervisory authority.
The Liechtenstein transitional period, which ran until 1 July 2026, applied in particular to already registered token service providers whose activities now fall under MiCAR as crypto-asset services. However, the transitional arrangement did not confer any right to passporting. Cross-border activities within the EEA could only be carried out on the basis of a MiCAR authorisation and the corresponding notification procedure.
Principle: Authorisation requirement for crypto-asset services
Under Article 59 of MiCAR, crypto-asset services within the Union may, in principle, only be provided by
- CASPs authorised under Article 63 of MiCAR, or
- certain already regulated financial firms, following completion of the procedure set out in Article 60 of MiCAR.
Under Article 59(2) of MiCAR, authorisation as a CASP generally requires that the provider has its registered office in a Member State, provides part of its services there, has its effective centre of management within the Union, and has at least one director resident in the Union.
A company with its registered office outside the EEA cannot, therefore, in principle, obtain a MiCAR authorisation directly as a third-country firm. To gain permanent market access, the establishment of an EEA company followed by CASP authorisation, or a legally sound collaboration with an authorised CASP, is usually an option.
When does Article 61 of MiCAR apply?
Article 61(1) of MiCAR covers the situation where a client resident or established in the Union, on their own exclusive initiative, requests the provision of a crypto-asset service or activity by a third-country firm. The third-country provider must not have induced the client, either directly or indirectly, to use its services.
The actual circumstances of the individual case are decisive. What matters is not whether the client has signed a corresponding declaration or invoked ‘reverse solicitation’ in a contract, but how the business relationship actually came about.
Furthermore, Article 61(2) of MiCAR limits the scope of the exemption to crypto-asset services initiated by the client. A business relationship originally established on the client’s initiative therefore does not, in principle, entitle the third-country provider to subsequently actively offer the client further crypto-assets or crypto-asset services.
This restriction has significant practical implications. As many business models in the crypto sector are based on the gradual use of further products and services, Article 61(2) of MiCAR sets limits on such an expansion of the business relationship.
Practical example
A client from the EEA opens an account with a third-country provider on their own initiative in order to trade in Bitcoin. With regard to this crypto-asset service, the provider may, in principle, rely on Article 61 of MiCAR. However, if the provider subsequently wishes to actively offer or promote further services to the client – such as staking, lending or trading in other crypto-asset products – this can no longer be automatically based on Article 61 of MiCAR. For each additional service, a separate assessment must be made as to whether its use also takes place exclusively on the client’s initiative.
Article 61 of MiCAR helps to ensure that an initially permissible client initiative does not develop into a general business relationship through which third-country providers market their entire range of services to clients in the EEA without a MiCAR authorisation.
Which requirements do the ESMA guidelines specify in more detail?
MiCAR regulates reverse solicitation only in broad terms. In its guidelines, ESMA specifies in particular when an active approach to clients (“solicitation”) is deemed to have taken place and under what conditions third-country providers cannot rely on Article 61 of MiCAR.
Marketing and sales activities
In ESMA’s view, the term ‘solicitation’ should be interpreted broadly. It encompasses all marketing and sales activities that are aimed at, or are likely to, attract clients in the EEA to crypto-assets or crypto-asset services.
These include, in particular:
- websites and digital platforms relating to the EEA;
- advertising via social media;
- email campaigns and direct marketing;
- sponsorship and events;
- influencer marketing and affiliate programmes.
Even individual marketing measures may result in the exemption under Article 61 of MiCAR no longer applying.
Attribution of third-party marketing measures
ESMA also clarifies that it is not only a firm’s own marketing and distribution activities that are relevant. Under certain conditions, actions by affiliated companies, distribution partners, affiliates, influencers or other commissioned third parties may also be attributed to the non-EU provider.
Companies should therefore review not only their own communication measures, but also those of individuals or companies acting on their behalf or for their benefit.
Disclaimers and client confirmations are not sufficient
In ESMA’s view, general contractual clauses or client confirmations stating that the business relationship was established on the client’s initiative are not sufficient in themselves. Rather, the actual circumstances of the individual case remain decisive.
What is therefore decisive is not the formal structure of the contractual documents, but whether it can be objectively established that the initiative for the respective crypto-asset service did in fact originate exclusively from the client.
What does this mean in practice?
With MiCAR now fully applicable, providers from third countries should critically review their sales and marketing strategies. In particular, companies should analyse existing websites, social media presence, newsletters, sponsorship activities and affiliate programmes to determine whether they are specifically targeted at clients in the EEA.
It is also advisable to maintain clear documentation of the customer’s initiative so that, in individual cases, it can be demonstrated that the relevant crypto-asset service was in fact provided exclusively at the customer’s instigation.
Reverse solicitation is no substitute for a market access strategy
Reverse solicitation is not designed to facilitate permanent market access to the EEA. Companies wishing to provide crypto-asset services to customers in the EEA on a permanent basis should therefore assess whether a MiCAR authorisation or a partnership with an authorised CASP represents the more sustainable regulatory solution in the long term.
What are the risks of an unauthorised reliance on Article 61 of MiCAR?
Any entity that wrongfully invokes Article 61 of MiCAR and provides crypto-asset services to clients in the EEA without the required MiCAR authorisation must expect regulatory measures from the competent authority. Depending on national transposition legislation, administrative or criminal law consequences may also apply.
Irrespective of these supervisory and legal consequences, significant practical risks may also arise. These include, in particular, restrictions on business activities, impacts on existing client relationships, reputational damage and civil liability risks.
In summary
With the expiry of the MiCAR transition periods, Article 61 of MiCAR has come more sharply into focus for third-country providers. The ESMA guidelines make it clear that reliance on ‘reverse solicitation’ is only possible under strict conditions. Companies should therefore assess at an early stage whether their business model is compatible with the requirements of Article 61 of MiCAR or whether a regulated market presence within the EEA represents the more viable solution in the long term.
The team at Niedermüller Rechtsanwälte has extensive expertise in Liechtenstein financial market and supervisory law and advises both national and international financial service providers on all regulatory matters. We would be pleased to assist you in analysing your current regulatory situation, developing a legally sound market access strategy and obtaining MiCA authorisation as a CASP. Furthermore, we support you throughout the entire authorisation process with the Liechtenstein Financial Market Authority (FMA) and in implementing the regulatory requirements in your day-to-day business operations.
8 | 2026