Article 42 of MiFID II allows third-country firms to market products and services directly (without the need of a branch) to retail clients and professional clients within the meaning of Section II of Annex II of MiFID II if this is done at the client´s own exclusive initiative (reverse solicitation exemption), specifying that in such a case the firm in question may also offer the client products and services from the same category. Does this mean that a firm that, within the context of a one-off service to the client, has sold, or has had the opportunity to sell, a product or service under this rule may in the future again offer products or services from the same category (i.e. outside the context of the request of the client) ?

Answer 4

No. The reverse solicitation exemption is based on the premise that the product or service is marketed at the client´s own exclusive initiative [On this topic see Q&A 1 of this Section.] and can only be applied to the specific product or service requested ("the requirement for authorisation under Article 39 shall not apply to the provision of that service or activity by the third-country firm").

Therefore, when providing a one-off investment service [On this topic see also Q&A 1 of Chapter 15 of this document.] to a client, the third-country firm may not sell to that client (without establishing a branch if so provided for by national law) a product or service from the same category [On this topic see also Q&A 3 of this Chapter.] unless requested to do so by the client at its own exclusive initiative and only at the time the client asks for an investment product or service.