Swiss law meets MiCAR: serving Italian clients from Lugano

The structure of MiCAR

The European Union regulated Kryptowerte und Digital Assets through Regulation (EU) 2023/1114 of the European Parliament and of the Council of 31 May 2023, known as MiCAR. The Regulation applies to tokens that are not already covered by European financial services law, in particular to tokens that are not financial instruments under MiFID II, deposits, funds, securitization positions or insurance and pension products. It contains rules on the offer of such tokens to the public, with a white paper, on assetreferenced tokens and e-money tokens, on the authorization and conduct of cryptoasset service providers (CASPs) and on market abuse. Its provisions on asset-referenced and e-money tokens have applied since 30 June 2024, the rest since 30 December 2024.¹ Member States could allow providers that were already active under national law to continue for a transitional period of up to eighteen months, until 1 July 2026 at the latest, or until their authorization was granted or refused. Member States could decide not to apply the transitional period or to shorten it.²

A CASP authorized in one Member State may provide its services throughout the Union under the passport. Article 59 MiCAR requires the provider to be a legal person or another undertaking with its registered office in a Member State in which it carries out substantive business activities, including the provision of its services. It must have its place of effective management in the Union, and at least one of its directors must be resident there.³ MiCAR contains no regime for third-country providers comparable to the equivalence decisions of MiFIR. A Swiss provider cannot obtain access to the European market on the basis of its Swiss supervision. To serve clients in Italy actively, it needs an authorization as a CASP in a Member State, which means an EU subsidiary with real substance.

Reverse solicitation under Article 61

The only exception for third-country providers is reverse solicitation. Under Article 61 MiCAR, where a client established or situated in the Union initiates at its own exclusive initiative the provision of a service in Kryptowerte und Digital Assets by a thirdcountry firm, the requirement of authorization does not apply to that service. The exemption is lost if the firm solicits clients or prospective clients in the Union or promotes or advertises its services there, whether directly or through a third party. The client's own initiative does not entitle the firm to market new types of tokens or services to that client.⁴ Chapter E.IV describes the corresponding rules for investment and banking services, where the same logic applies under Article 42 MiFID II and Article 21c CRD.

ESMA's guidelines on reverse solicitation under MiCAR were published in final form on 30 December 2024, after a consultation that began on 29 January 2024 and closed on 29 April 2024. They require the client's initiative to be expressed and explicit and exclude reliance on contractual disclaimers or pre-completed forms. Further services are permitted only if they are directly related to the original transaction and of the same type. ESMA gives examples of tokens that are not of the same type, such as utility tokens compared with asset-referenced or e-money tokens, e-money tokens referenced to different currencies, and liquid compared with illiquid tokens.⁵ The guidelines list a wide range of prohibited solicitation, including geo-targeted online advertising, websites or backlinks of EU affiliates, endorsements by influencers even without a formal agreement, social media promotion, banners and pop-ups, press releases, invitations to events and the offer of service packages after the first contact. Providers must keep records proving that the client initiated each request for a new product or service.⁶

Notes

1. Regulation (EU) 2023/1114 of the European Parliament and of the Council of 31 May 2023 (MiCAR), https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32023R1114 (application of Titles III and IV from 30 June 2024, of the other provisions from 30 December 2024). On the scope exclusions of Art. 2 para. 4 see recital 9 (tokens that qualify as financial instruments, deposits, funds, securitisation positions and non-life or life insurance contracts), https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32023R1114. ↩
2. MiCAR, Art. 143 para. 3, https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/? uri=CELEX:32023R1114 (providers active before 30 December 2024 "may continue until 1 July 2026" or until a decision on authorization; Member States may "decide not to apply or reduce the duration"). ↩
3. MiCAR, Art. 59 para. 2 (above) (registered office "in a Member State in which they carry out substantive business activities, including the provision of crypto-asset services"), and recital 74 ("place of effective management in the Union, and at least one of the directors should be resident in the Union"). ↩
4. MiCAR, Art. 61 paras. 1–3 (above), and recital 75 (services provided "on the own initiative of a person established in the Union" not deemed to be provided in the Union). On the limits for further products and services, Clifford Chance (below) (promotion of additional products, services or activities prohibited unless "directly related to the original transaction" and "of the same type"; solicitation through intermediaries and influencers prohibited). ↩
5. Clifford Chance, The reverse solicitation exemption under MiCA, January 2025, https://www.cliffordchance.com/content/dam/cliffordchance/briefings/2025/01/the-reverse-solicitation-exemption-under-mica.pdf (consultation of 29 January 2024, deadline 29 April 2024, final guidelines of 30 December 2024; "expressed and explicit" initiative; same type; examples of non-equivalent tokens). ↩
6. Clifford Chance (above) (prohibited solicitation methods; record-keeping). ↩

For general information only. This article does not constitute legal or tax advice, does not replace advice on an individual case and creates no lawyer-client relationship. It reflects the legal position as of August 2025.