- 1. What does “put on the market” mean?
- 2. Is a product “put on the market” with an intra-company transfer to a warehouse in a EU country?
- 3. Is a product considered “put on the market” when it is imported or when it is transferred to retailers?
- 4. If a product enters the Community market in another member state is it considered “put on the market” in Germany as well?
- 5. If a product is shipped is it considered “put on the market”?
- 6. How does the definition “put on the market” effect inventory decisions?
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.