We are a crypto firm outside the EU, and Slovak or Czech clients approached us on their own initiative. Do we need authorisation under MiCA?

Regulation (EU) 2023/1114 on markets in crypto-assets (MiCA) requires CASP authorisation to provide crypto-asset services in the Union or, for specified financial entities, compliance with the notification conditions under Article 60 (Article 59(1)). A third-country firm can rely only on a narrow exemption for a service that a client established or situated in the Union requests at that client’s own exclusive initiative (Article 61(1)). The fact that a Slovak or Czech client contacted you first does not, by itself, mean that you qualify for the exemption. The decisive question is whether you or anyone acting on your behalf had previously solicited that client.

What counts as solicitation

The Regulation excludes the exemption where clients in the Union are solicited in any form:

The following quotation is reproduced in its original language:

Bez toho, aby boli dotknuté vzťahy v rámci skupiny, ak spoločnosť z tretej krajiny, a to aj prostredníctvom subjektu, ktorý koná v jej mene alebo má úzke väzby na takúto spoločnosť z tretej krajiny, alebo prostredníctvom akejkoľvek inej osoby konajúcej v mene takéhoto subjektu, oslovuje klientov alebo potenciálnych klientov v Únii bez ohľadu na to, aké komunikačné prostriedky používa na oslovovanie, propagáciu alebo reklamu v Únii, nepovažuje sa to za službu poskytovanú z vlastného výlučného podnetu klienta.

čl. 61 ods. 1 druhý pododsek nariadenia (EÚ) 2023/1114

Under the third subparagraph, a contractual provision or disclaimer stating that the service is provided at the client’s initiative does not change this. In its guidelines of 26 February 2025, the European Securities and Markets Authority (ESMA) interprets solicitation broadly and in a technology-neutral manner (guidelines ESMA35-1872330276-2030). This includes online advertisements, emails, telephone calls, banners on websites and social media, invitations to events, affiliate campaigns, retargeted advertising and sponsorship (point 12). An influencer may also act on your behalf, particularly if they receive remuneration or another benefit from you (point 20).

When the exemption applies and what it does not permit

If the client sought the service at their own exclusive initiative, authorisation is not required to provide that service or activity to that client (Article 61(1), first subparagraph). However, the exemption does not permit you to market new types of crypto-assets or services to that client (Article 61(2)). ESMA interprets the exemption restrictively and assesses it on the facts, rather than on contractual arrangements (points 23 and 24). According to ESMA, crypto-assets of the same type may be marketed to the client only in the context of the original transaction, rather than, for example, a month later (points 26 and 27). The firm should be able to produce records demonstrating that the initiative came from the client (point 28).

If there is a risk that your ordinary promotional activities also solicit clients in the EU, ESMA identifies refusing to open new accounts for EU clients or geographically blocking access to services as preventive measures (point 16). The guidelines apply to supervisory authorities and, as regards the section on client solicitation, also to third-country firms (point 1). Supervisory authorities should make every effort to comply with them (point 6).

Potential consequences in Slovakia and Czechia

In Slovakia, the National Bank of Slovakia acts as the competent authority under MiCA (Section 7(1) of Act No. 248/2024 Z. z. on Certain Obligations and Powers in the Field of Crypto-assets). If it has reason to believe that someone is providing crypto-asset services without authorisation, it may order the immediate cessation of that activity without prior warning (Article 94(1), letter h) of MiCA). If other effective means are insufficient, it may also restrict access to an online interface (Article 94(1), letter aa) of MiCA and Section 10 of Act No. 248/2024 Z. z.). It may also impose a remedial measure and a fine for a breach of the Regulation (Section 8(1)).

In Czechia, the competent authority is the Czech National Bank (Section 9 of Act No. 31/2025 Sb., Act on the Digitalisation of the Financial Market), which may exercise the powers under Article 94(1) of MiCA (Section 13(1)). A legal entity’s breach of the obligations under Article 59 of MiCA constitutes an administrative offence (Section 22(1), letter b) of Act No. 31/2025 Sb.).

If you wish to provide services to Slovak and Czech clients on an ongoing basis, you need CASP authorisation. Without it, only specified EU financial entities, such as banks or securities dealers, may provide crypto-asset services following notification under Article 60 (Article 59(1), letter b)). CASP authorisation may be obtained only by a legal person or other undertaking with its registered office in a Member State where it carries out at least part of its activities, with its place of effective management in the Union and at least one director resident in the Union (Article 59(2)). You can then use that authorisation in other states following notification under Article 65, as explained in the question on CASP authorisation and services in Czechia.

We will assess whether your model qualifies as a service provided at the client’s own exclusive initiative and, if it does not, prepare an application for authorisation to NBS or ČNB as part of our MiCA licensing for crypto-asset services service. The article on CASP authorisation under MiCA explains what the application must include.