Reverse solicitation and access to the European market
The Binance case and the limits of the MiCAR exemption
MiCAR established a common framework for the authorisation and supervision of crypto-asset service providers in the European Union, replacing the fragmented national regimes that preceded it. The end of the transitional period completed this shift, making continued operation subject to the requirements set out in the regulation. Third-country firms retain a narrow exemption for services requested at a client’s own exclusive initiative, known as reverse solicitation. The Binance case concerns the use of this exemption to serve European clients without MiCAR authorisation. Supervisory authorities in France, Germany and Greece are reportedly examining these arrangements, and some are said to have requested information on their legal basis. The central question is whether requests originate independently with clients or follow commercial solicitation attributable to the provider. This distinction affects both the conditions for market access and the protections available to clients, which depend on the regulatory regime applicable to the provider.
Market access after the transitional period
Under the standard regime, access to the European market requires CASP authorisation or, for eligible categories of financial entities, compliance with Article 60 of MiCAR, which provides for prior notification to the competent authority. Authorisation granted in one Member State enables a provider to operate throughout the Union, within the scope of its authorised services, using the cross-border notification procedure under Article 65. Providers must notify the authority in their home Member State of, among other things, the countries concerned, the services to be provided and the intended start date. ESMA has set out an orderly wind-down process for providers that relied on the transitional regime without securing the regulatory status required to continue, with the aim of bringing their client relationships to a close. These providers must stop onboarding new clients in the Union and cease marketing directed at the European market, restricting services to the transactions needed to sell or transfer assets and close positions. Custody may continue only for as long as strictly necessary to complete the exit. The plan must clearly state the timetable and the deadline for any automatic closure of remaining positions, while anti-money laundering and transfer traceability obligations continue to apply. This temporary continuation is intended to protect clients during the wind-down. Services provided by a third-country firm at a client’s own exclusive initiative rest on a separate legal basis, subject to the limits of Article 61.
The scope of reverse solicitation
Article 61 exempts a third-country firm from the authorisation requirement under Article 59 when a client established or situated in the Union requests a service at their own exclusive initiative. The exemption covers the requested service and the relationship specifically connected to it, without extending to the firm’s commercial activities as a whole. The exclusive initiative requirement also applies to business-to-business relationships and is not met if the provider has solicited the client, directly or through persons acting on its behalf or having close links with it. The origin of the request must be established from the facts, which cannot be overridden by contractual clauses or declarations signed by the client stating that they acted independently. Even where the request is spontaneous, the firm cannot rely on the exemption to market new types of crypto-assets or services. The restriction therefore concerns both the origin of the request and the scope of subsequent marketing. In assessing whether products are of the same type, ESMA’s guidelines require consideration of their category and risks. Their availability on the same platform is not sufficient to establish equivalence.
Assessing the client’s initiative in practice
Applying these criteria requires examining how the firm reaches European clients and offers them its services. ESMA’s guidelines take a broad view of solicitation, which may include online advertising, affiliate programmes, sponsorships and influencer marketing, including activities carried out by affiliated companies or persons acting on the provider’s behalf. General brand advertising targeting a European audience may also qualify, even without references to a particular service. The involvement of an EU-regulated intermediary does not make a request independent if it was solicited on behalf of a third-country firm. The assessment of promotional activities must also consider client records, which should allow the origin of requests to be traced, particularly where they concern new products. The timing of subsequent offers also matters. Firms may market crypto-assets or services of the same type in the context of the initial transaction, but a spontaneous first contact does not, in itself, authorise subsequent commercial solicitation. Assessing Binance’s reliance on the exemption therefore requires examining client acquisition, marketing communications and the development of client relationships together, to determine whether its actual operations remain within the permitted scope.
Supervision and client protection
National authorities are responsible for supervising reliance on reverse solicitation, conducting investigations and imposing sanctions, while ESMA promotes cooperation and consistent application of the rules. Binance states that it complies with applicable rules and is working towards MiCAR authorisation. Stronger supervision of third-country firms also features in discussions on revising the regulation. In its response to the Commission’s consultation, published on 30 September 2026, ESMA proposed specific powers to address firms that solicit investors in the Union without authorisation, to ensure a consistent and narrow interpretation of Article 61. For clients, the applicable protection regime remains crucial regardless of the outcome of these inquiries. Even when a service meets the conditions of Article 61, the client does not benefit from the MiCAR safeguards applicable to relationships with providers authorised or otherwise entitled to operate under the EU framework. For custody, Article 75 requires a CASP to segregate clients’ crypto-assets legally and operationally from its own estate so that, in accordance with applicable law, its creditors have no recourse to those assets, including in the event of insolvency. The CASP is also liable for the loss of assets or the means of access caused by incidents attributable to it, with liability capped at the assets’ market value at the time of the loss. The choice of provider therefore also determines the liability framework within which clients can enforce their rights.
Conclusions
The central question in the Binance case is whether the firm’s European operations remain within an exemption based on clients’ independent requests or amount to a commercial offering directed at the Union. Article 61 covers the requested service and the client relationship specifically linked to it, but does not grant a general right to acquire clients and grow a European client base. If the exemption covered activities promoted in the European market, it would allow firms to compete with CASPs without assuming their obligations, while leaving clients without the corresponding MiCAR safeguards. The issue therefore concerns both competitive conditions and the allocation of risks and responsibilities in client relationships. To establish whether these limits are respected, authorities must assess the promotional activities and services provided by the entities involved as a whole, even where those entities operate across several countries. The purpose of coordinating supervision is to prevent divergent interpretations of Article 61 from producing different regulatory outcomes for the same business model and undermining uniform conditions for market access.
