FRANCE Law and Practice Contributed by: Hubert de Vauplane and Hugo Bordet, Morgan Lewis & Bockius LLP
2.16 Reverse Solicitation Banking and Payment Services
The assessment of whether a service is provided on a reverse solicitation basis will generally be based on a case-by-case analysis by the AMF or a court. In France, the AMF hasq included in its General Regulations (Article 721-1-1) a detailed list of the criteria used to determine whether the services can benefit from the reverse solicitation exemption. As such, crypto-asset services pro - vided by an entity located in a third country will be considered as provided in France if: • the service provider has commercial offices for the marketing of a regulated service in France; • the service provider sends promotional com - munications, by any means, to customers based in France; • the service provider organises the distribu - tion of its products and services through one or more distribution networks to customers based in France; • the service provider has a postal address or telephone number in France; or • the service provider has a domain name for its website that refers to France (eg, “.fr” ). In addition to these criteria, the fact of spon - soring events or conferences located in an EU Member State can be considered as a sign that the regulated services are provided in that Mem - ber State. Indeed, sponsoring these events is often a way of promoting a brand, even if the services themselves are not actively promoted. It should also be noted that the application of the reverse solicitation principle is stricter in MiCAR compared to MiFID II. For example, the final guidelines on reverse solicitation in MiCAR (published in December 2024) are particularly exhaustive and cover all methods of promo - tion, including the use of influencers, whereas the MiFID II guidelines, which are older, do not
Regarding banking and payment services, the requirement for a physical presence in each EU Member State through the establishment of a branch to provide banking or payment servic - es within the EU does not apply to companies based in third countries that offer services to clients and counterparties located in a Member State, within the framework of a reverse solicita - tion of services. Marketing of Shares and Units of Funds The marketing in France of shares or units of funds managed by a management company established in a state other than France is sub - ject to prior authorisation from the AMF when aimed at non-professional clients. However, when the solicitation originates directly from the client and specifically and unequivocally targets the product the client wishes to subscribe to, this is not considered a marketing activity in France and is thus exempt from the prior authorisation requirement from the AMF, as well as from the application of French law. Provision of Crypto-Asset Services MiCAR contains a general reverse solicitation principle that allows a non-EU firm to provide regulated services to EU residents without being required to obtain a licence, provided that the clients have themselves solicited the provision of the services from the third-country firm. Relying on the exception of reverse solicitation would require French CASPs to refrain from actively marketing or distributing their services to EU residents. Indeed, the criterion used to qualify reverse solicitation is quite restrictive considering that the regulated service must be provided “at the own exclusive initiative” of the EU resident.
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