1. What does “put on the market” mean?

The phrase is not specifically defined in the RoHS directive, nor is there a definition in any EU legally binding instruments. The EU commission has taken much criticism due to their unwillingness to clearly define this concept. There have been several attempts by the Commission to explain in detail “put on the market”, however these have been strictly non-legally binding guidelines.

The directive declares that a product is put on the market when it is “made available for the first time on the Community market, but only when the product is transferred from the stage of the manufacturer with the intention of distribution or use on the EU market”.

This takes place through a transfer of ownership from the producer or his authorized representative to the distributor or final consumer on the market. The transfer is considered to have taken place by either the physical handing over of goods or legal transfer of ownership.
This transfer may take place under contract via sale, loan, hire, leasing, gift or any other commonly used legal forms. This refers to each individual piece of equipment, not new products or product lines.

2. Is a product “put on the market” with an intra-company transfer to a warehouse in a EU country?

No, a product must be transferred to the distributor or importer directly or to a subsidiary working as the authorized agent. A mere in-house transfer of goods even in a border-crossing context does not constitute the product being “put on the market" as it not yet made available for sale.

3. Is a product considered “put on the market” when it is imported or when it is transferred to retailers?

According to the new approach under the German legislation, a product is considered “put on the market” when it is first made available for use or distribution in the Community. Accordingly, a product can be “put on the market” before it is sold to end-consumers. This takes place when a product transfers ownership from the manufacturer to an authorized importer or distributor in the community market.

4. If a product enters the Community market in another member state is it considered “put on the market” in Germany as well?

Yes, a product is “put on the market” when it is “put on the Community market”, not just when it is “put on the national market” of a given member state. This applies accordingly to finished products, i.e. labelled and packed with no further processing required that are imported into the Community before July 1st, 2006 and are shipping into a warehouse in the community.

5. If a product is shipped is it considered “put on the market”?

According to the EU Comission, a product is only “put on the market” when it is generally available for sale in the EU. This does not take place until it has cleared import procedures at an EU point of entry.

Therefore, a product shipped from a port overseas FOB is not considered "put on the market" until it has cleared all customs procedures and a transfer of ownership has occured. Shipped does not necessarily mean “put on the market”.

6. How does the definition “put on the market” effect inventory decisions?

All products put on the market before July 1st, 2006 may continue to be sold after that date. However, new products put on the market after this date must be RoHS compliant. Therefore, companies should aim to play their non-RoHS compliant products on the market before the deadline, enabling them to still be available for sale.

We have often encountered questions regarding post-deadline border crossing. For instance, whether a non-RoHS product in a warehouse in the EU put on the market before July 1st may be brought into Germany after this date. Products placed on the Community market may still transgress borders into other EU countries for sale after July 1st. Detailed documentation for every step of the supply chain is necessary. Customs records, invoices and freight receipts including product numbers should be kept for all shipments. Every producer, distributor and retailer should retain all documentation with specific dates about shipments. This is essential for proving to the authorities when a product was “placed on the market”, therefore avoiding possible sales prohibitions.