MiCA & Reverse Solicitations : the trap to avoid by non-EU companies
- BECTRA
- Feb 9
- 2 min read
🔹 Understanding Reverse Solicitation in Crypto-Assets
When a French client (whether a company or an individual) takes the initiative to purchase a crypto-asset-related service from a company based outside the European Union (EU), the company in question is not required to obtain authorization from the AMF (French Financial Markets Authority) before offering its service.
📊 Real-World Example: The Case of PayPal
Client Initiative: A French individual decides to use PayPal (not authorized by the AMF for crypto-assets in France) to purchase BTC or ETH via its application.
No Authorization Required: Since the client took the initiative, PayPal is not required to have AMF authorization for this transaction.
⚠️ Important Limitation : Even if the client initiates contact with the non-EU company, the company cannot use this opportunity to :
Offer other crypto-asset products.
Provide additional services, such as crypto portfolio management.
This rule aims to reduce the risk of regulatory circumvention within the European framework.
🔹 The Exception: Active Solicitation by Non-EU Companies
If a company based outside the EU (e.g., in California) engages in active solicitation targeting clients in France or the EU, the situation changes significantly.
🔎 What Is Active Solicitation?
This includes actions such as:
Targeted advertising campaigns in France or the EU.
Promotional activities on European social media platforms.
Sending emails, phone calls, or direct messages to potential clients in Europe.
❌ Consequences of Active Solicitation:
In such cases, the service will not be considered as initiated by the client, even if :
A contract or disclaimer clause claims otherwise.
🔒 Obligation : The company must obtain AMF authorization before offering its services.
📊 Key Regulatory Reference
All forms of solicitation considered as active solicitation are listed by ESMA in its final report dated December 17, 2024. This document serves as an essential reference for companies aiming to operate in full compliance with European regulations.
🚀 Key Takeaways :
No AMF authorization required if the client initiates the request.
Prohibition on offering unsolicited additional services.
Mandatory authorization in cases of active or indirect solicitation.
Vigilance on commercial practices as assessed by ESMA.
To avoid compliance errors, it's crucial to clearly distinguish between reverse solicitation and active solicitation, as the regulatory consequences can be significant.
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