The date of placing on the market is a very important notion, as it is the limit within which a manufacturer is required to comply with certain obligations, identified by the reference legislation depending on the product, to meet the essential consumers or operators’ safety and health protection requirements, in the case of internal components.
It often happens, especially in the case of B2B products, that the so-called placing on the market could be compared to installation or “commissioning” or even personal use (eg machines used by the same manufacturer).
This is not always the case, especially when dealing with a production chain.
The first definition of placing on the market
A definition of placing on the European market is offered by Regulation no. 765/2008 which establishes “rules on accreditation and market surveillance as regards the marketing of products and which repeals regulation (EEC) no. 339/93 “.
In detail, placing on the market means “the first making available of a product on the Community market” or “the supply of a product for distribution, consumption or use on the Community market in the course of a commercial activity, against payment or free of charge “.
The same definitions are then taken up in the recent Regulation (EU) no. 2019/1020 “on market surveillance and product compliance and amending directive 2004/42 / EC and regulations (EC) no. 765/2008 and (EU) no. 305/2011 “, which redefines making available on the market as any “any supply of a product for distribution, consumption or use on the Union market in the course of a commercial activity, for consideration or free”.
We remind you that the application of this Regulation has been postponed to 2021, however, as regards this aspect, the definition remains almost unchanged.
The Blue Guide and the end use
To further clarify the definition, the European Commission has developed a Communication entitled “The blue guide to the implementation of EU product legislation 2016” (2016 / C 272/01) which specifies that “the product must comply the legal requirements in force at the time of placing on the market (or putting into service)”, specifying what has already been mentioned in some European Union harmonization provisions: putting into service, or personal use, are considered equivalent when placed on the market. Point 2 of that Communication also makes it clear that “the supply of a product is considered to be making available on the Union market only when the product is intended for end use on the Union market”. According to the Commission, therefore, “the supply of products for further distribution, for incorporation into a final product, for further processing or refining for the purpose of exporting the final product out of the Union market is not considered a provision”, ensuring traceability of the product along the entire supply chain, so that the components of this chain comply with current regulations, when the actual final product (which contains them) is placed on the market. Furthermore, in the Blue Guide it is specified that “the making available of a product presupposes an offer or an agreement (written or verbal) between two or more natural or legal persons for the transfer of ownership, possession or any other right concerning the product in question once the manufacturing stage has been completed. The transfer does not necessarily require the physical delivery of the product”.
Although this Communication is more a recommendation than a real law, the definitions of “making available” and “placing on the market” and above all of “final product” of the European Union are nevertheless better specified, with the aim of avoiding misunderstandings or contradictory interpretations.
The correct identification of the moment of placing on the market plays a fundamental role in identifying the relevant legislation. The relationship between placing on the market / compliance can indeed raise some doubts among manufacturers, especially in the case of B2B and where a regulatory change has occurred before the product reaches end users.
In order to be able to talk about placing on the European market, therefore, the mere production of the product in any member state is not enough, but a real provision of the real finished product on the domestic market is required, both at the distribution level and it at the level of consumption.
Therefore, when the manufacturer places the machine on the market, through verbal or written agreements, or through the offer of the goods also through advertising or invitations to purchase, the product must already be equipped with a declaration of conformity, based on the current legislation in that specific moment.
For more information, we invite you to contact professionals regarding European legislation.