--- title: "ESMA Q&A 1862 — Q&A — Initiation at own initiative [Answer Published]" shortTitle: "ESMA Q&A 1862 — Q&A — Initiation at own initiative [Answer Published]" answer_id: ESMA_QA_1862 topic: "Provision of investment services and activities by third country firms" status: "Answer Published" type: qa instrument_type: qa authority: ESMA binding: false binding_character: non_binding legal_status: in_force regulation: "MiFID II" mifid_level3: true mica_level2: false legal_basis: "MiFID II" date: 25 May 2018 source_link: https://www.esma.europa.eu/publications-data/questions-answers/1862 lifecycle: "Answer Published" text_version: "ESMA Q&A register, 25 May 2018" source_url: "https://www.esma.europa.eu/publications-data/questions-answers/1862" check_status: matched verified: true last_checked: 2026-10-26 checked_against: "the ESMA publication" source: prepared_by: "ESMA" published_by: "ESMA" published_in: "ESMA Q&A tool" evidence: prepared_by: "ESMA Answer" locator: "ESMA Q&A entry ESMA_QA_1862: field 'ESMA Answer', no 'Answer provided by' line" document_type: "qa_answer" legal_nature: "not_legislation" addressees: "not stated in the document" dates: published_on: "2018-05-25" question_submitted_on: "2018-05-25" locators: published_on: "ESMA Q&A Excel export ESMA_QA_1862, column 'Esma responses', date line" question_submitted_on: "ESMA Q&A Excel export ESMA_QA_1862, column 'Date of submission'" lifecycle_label: "Answer Published" --- **Answer by ESMA, published in its Q&A tool · not legislation · published 25 May 2018 [Answer Published]** *Answer Published · ESMA Q&A register, 25 May 2018 · Checked against the ESMA publication on 26 Oct 2026 · [Official source](https://www.esma.europa.eu/publications-data/questions-answers/1862)* | | | |---|---| | **Full title** | ESMA Q&A 1862 — Q&A — Initiation at own initiative \[Answer Published\] | | **Prepared by** | ESMA | | **Published by** | ESMA, in the ESMA Q&A tool | | **Reference** | ESMA_QA_1862 | | **Document type** | Q&A | | **Legal nature** | Not legislation | | **Addressees** | Not stated in the document | | **Dates** | Published 25 May 2018; question submitted 25 May 2018 | | **Legal basis** | MiFID II | | **Related instruments** | None recorded | | **Text on this page** | Word for word — the full text of the ESMA publication | **Initiation at own initiative** ### Question Article 42 of MiFID II regulates the provision of services by third country firms at the exclusive initiative of the client. How should “initiates at its own exclusive initiative the provision of an investment service or activity by a third-country firm” be understood in Article 42 of MiFID II? *** ### Answer \[ESMA 35-43-349 MiFID II Q&As on Investor protection Ch 13, question 1\] According to Article 42 of MiFID II, where a retail client or professional client within the meaning of Section II of Annex II established or situated in the Union initiates at its own exclusive initiative the provision of an investment service or activity by a third-country firm, the third country firm is not subject to the requirements under Article 39. As provided in recital 111, in order to qualify for Article 42 of MiFID II, “where a third-country firm solicits clients or potential clients in the Union or promotes or advertises investment services or activities together with ancillary services in the Union, it should not be deemed as a service provided at the own exclusive initiative of the client”. ESMA is of the view that such a solicitation, promotion or advertising should be considered regardless of the person through whom it is issued: the third country firm itself, an entity acting on its behalf or having close links with such third country firm or any other person acting on behalf of such entity. As for the means of such solicitations, ESMA is of the view that every communication means used such as press releases, advertising on internet, brochures, phone calls or face-to-face meetings should be considered to determine if the client or potential client has been subject to any solicitation, promotion or advertising in the Union on the firm’s investment services or activities or on financial instruments. Firms are reminded that such clarification is without prejudice to any provisions attached to the marketing of such products. The client’s own exclusive initiative shall be assessed in concreto on a case by case basis for each investment service or activity provided, regardless of any contractual clause or disclaimer purporting to state, for example, that the third country firm will be deemed to respond to the exclusive initiative of the client. Such approach should be used for the purpose of Article 46 of MiFIR as well. *** **Source:** [ESMA original document](https://www.esma.europa.eu/publications-data/questions-answers/1862)