Protecting foreign crypto businesses from MiCA fines: website audit for signs of active marketing in the EU

The entry into force of Regulation (EU) 2023/1114 on markets in crypto-assets (“MiCA”) has permanently changed the rules of the game, not only for European companies but also for the entire global crypto market. The European Union (“EU”) has established one of the strictest and most structured regulatory frameworks for crypto assets. Whereas previously companies outside the EU could attract European users with relative ease simply by not opening branches in Europe, the rules have now changed radically.

The main vulnerability for foreign crypto companies has become their own websites.

For European regulators (such as ESMA and national supervisory authorities in EU countries), your website is not merely an online calling card. It is key evidence of whether you are engaging in active marketing within the EU without the mandatory authorization.

What is the main risk?

Lots of foreign crypto businesses rely on the concept of “reverse solicitation”. Under this principle, if an EU customer has independently found a website, initiated registration and used the platform’s services without any direct or indirect influence, advertising or targeting by the company, the activity does not constitute a breach of EU legislation.

In practice, however, the line between passively accepting a customer and actively attracting one has become extremely fine. European regulators interpret the concept of active marketing broadly. If certain indicators are found on a website’s interface (ranging from the availability of European languages to specific promotional campaigns and banners), the regulatory authorities draw an unambiguous conclusion: illegal promotion of services is taking place within the EU.

The consequences of a legal offense:

heavy fines, which for legal entities may be up to 15,000,000 euros or up to 15% of their total annual worldwide turnover (whichever is higher), or up to three times the amount of profit gained as a result of the offense;
blacklisting of the platform by regulators;
domain names being blocked across the EU;
A complete loss of reputational stability in the international market.

Possession of a valid local license and the fact that operations are entirely lawful in the country of registration do not exempt a business from liability under EU law. To ensure a website continues operating without the risk of sanctions, a thorough compliance audit is required to completely rule out any grounds for action by European regulatory authorities.

Risk areas: which companies and legal forms are affected by MiCA

The rules on cross-border service provision and the strict restrictions on the concept of “reverse solicitation” laid down by the MiCA apply to all foreign market operators providing their services from outside the European Economic Area (“EEA”) and without a European crypto-asset service provider (“CASP”) license.

Under European law, all third-country firms find themselves in an equally vulnerable position. Regardless of the scale of their business, their reputation, or whether they hold local authorizations, the following are directly at risk of sanctions:

Holders of Money Services Business (“MSB”) status

Specifically, companies registered in Canada or the US. Holding this authorization confirms the legality of operations within their respective domestic markets, but does not confer any preferential treatment within the EEA.

Licensed virtual asset service providers (“VASPs”)

Companies holding licenses from Georgia, the United Arab Emirates, and other rapidly developing crypto-friendly regions.

Entities from traditional offshore jurisdictions

Companies registered in the Seychelles, Saint Vincent and the Grenadines, the British Virgin Islands, or the Cayman Islands. EU regulators have traditionally taken a keen interest in websites based in these jurisdictions.

Operators regulated in Asia and the Commonwealth of Independent States (“CIS”)

Companies holding licenses from Singapore or Hong Kong, or registered under special legal regimes such as the Astana International Financial Center in Kazakhstan.

DeFi platforms with a centralized interface

Projects whose web interface is administered by a specific legal entity, fund, or group of individuals, regardless of their place of nominal registration.

The main legal conflict arises from the fact that holding MSB status, a VASP license, or any other regional digital asset registration does not confirm the legality of transactions outside the country that issued it.

When a company’s website becomes accessible to a user located in Germany, France or Poland, the regulators in those countries do not assess whether a license is held. Instead, they assess the website’s accessibility. If the website lacks clear technical and legal barriers for Europeans, the company is automatically deemed to be in breach of European law, with all the resulting sanctions.

Indicators of active marketing: what exactly the regulator looks for on a website during an inspection

To hold a foreign company to account, European supervisory authorities do not need to request internal reports or search for vendor contracts. It is sufficient for them to carry out an audit of the website’s external interface.

There is a clear list of indicators that supervisory authorities can use to unequivocally conclude that a crypto business is engaging in targeted activities in the EU market and is therefore in breach of MiCA.

During a professional compliance audit, the website is assessed against the following critical areas:

Language versions and interface localization. The presence of official languages of EEA countries signals a direct focus on European consumers.
Fiat gateways and currency support. Integration of European fiat currencies or local payment systems popular exclusively within the EU.
Marketing activities and communication channels. Promotional campaigns linked to European events, EU phone codes, or region-specific community channels.
Legal documentation and onboarding. The absence of explicit geographical restrictions and the use of ineffective boilerplate disclaimers rather than automated blocking.
Availability of mobile apps. Listing official applications in the European regions of the App Store and Google Play.
Absence of technical barriers. Unrestricted access from European IP addresses and the lack of automated geo-blocking or VPN/proxy checks.
Other factors indicating an EU connection. Any other implicit elements indicating that a crypto business is deliberately targeting the EU market while bypassing mandatory licensing requirements.

How Manimama Law Firm can help

If you want to protect your crypto business from substantial fines and ensure its stable operation, Manimama Law Firm is your trusted partner. We have already prepared numerous international crypto projects for stringent regulatory changes by conducting comprehensive audits of their websites. Our team provides a fast, high-quality turnkey solution: we thoroughly review the website interface, adapt the legal documentation, and provide clear, straightforward recommendations for the necessary adjustments.

Manimama’s team includes lawyers who specialize in applying the reverse solicitation regime. They possess in-depth expertise in the legal analysis of international business models to ensure compliance with European regulatory standards. Our lawyers help clearly distinguish between active marketing and passive client acquisition and correctly structure the company’s public positioning and its onboarding and geoblocking procedures.

We understand that in the digital assets market, speed is everything. That is why we focus on delivering first-class solutions quickly and efficiently, without unnecessary red tape. Thanks to our personalized report, your business will be able to operate with confidence in the MiCA era, fully mitigate legal risks and scale up on the international stage with peace of mind.