Art. 61 Provision of crypto-asset services at the exclusive initiative of the client | MiCA regulation | MiCA

This article creates a narrow exemption to the authorisation requirement established in Article 59, which governs who can provide crypto-asset services in the Union.

Specifically, it provides that where a Union-based client approaches a third-country firm entirely on their own initiative, that third-country firm does not need to be authorised under Article 59 to serve that client.

However, the article draws a firm boundary around this exemption: any form of solicitation, promotion, or advertising directed at Union clients by the third-country firm — regardless of how it is communicated and regardless of any contractual disclaimer — disqualifies the service from being treated as client-initiated.

Furthermore, even where the exemption validly applies, the third-country firm cannot use it as a springboard to market new crypto-assets or services to that client.

Important points:

The client-initiated exemption only applies where a Union client approaches a third-country firm entirely on their own initiative, with no prior solicitation from the firm or any entity connected to it.
Any solicitation, promotion, or advertising in the Union — through any means and by any connected party — removes the benefit of the exemption, and contractual clauses attempting to override this rule have no effect.
ESMA is required to issue guidelines by 30 December 2024 on when a third-country firm is deemed to be soliciting Union clients and on supervisory practices to prevent circumvention of this article.

1. Where a client established or situated in the Union initiates at its own exclusive initiative the provision of a crypto-asset service or activity by a third‐country firm, the requirement for authorisation under Article 59 shall not apply to the provision of that crypto-asset service or activity by the third‐country firm to that client, including a relationship specifically relating to the provision of that crypto-asset service or activity.
2. Without prejudice to intragroup relationships, where a third‐country firm, including through an entity acting on its behalf or having close links with such third‐country firm or any other person acting on behalf of such entity, solicits clients or prospective clients in the Union, regardless of the means of communication used for the solicitation, promotion or advertising in the Union, it shall not be deemed to be a service provided on the client’s own exclusive initiative.
3. The second subparagraph shall apply notwithstanding any contractual clause or disclaimer purporting to state otherwise, including any clause or disclaimer that the provision of services by a third-country firm is deemed to be a service provided on the client’s own exclusive initiative.
1. A client’s own exclusive initiative as referred to in paragraph 1 shall not entitle a third‐country firm to market new types of crypto-assets or crypto-asset services to that client.
1. ESMA shall by 30 December 2024 issue guidelines in accordance with Article 16 of Regulation (EU) No 1095/2010 to specify the situations in which a third-country firm is deemed to solicit clients established or situated in the Union.
2. In order to foster convergence and promote consistent supervision in respect of the risk of abuse of this Article, ESMA shall also issue guidelines in accordance with Article 16 of Regulation (EU) No 1095/2010 on supervision practices to detect and prevent circumvention of this Regulation.

Article 61 Provision of crypto-asset services at the exclusive initiative of the client

Relevant recitals