Making Available on the Market: EU AI Act Definition (Article 3(10))
Making available on the market under EU AI Act Article 3(10): any supply of an AI system, paid or free, and why it binds distributors and importers downstream.
"Making available on the market" is the umbrella, not a doorway. Under Article 3(10) of Regulation (EU) 2024/1689, it means any supply of an AI system or a general-purpose AI model for distribution or use on the Union market in the course of a commercial activity, whether for payment or free of charge. The first such supply is the placing on the market; every supply after that is still a making available — which is why distributors and importers stay in scope.
Making available on the market: the Article 3(10) definition
The three phrases that carry the definition
Three phrases carry the load. Any supply is broad and repeatable — not a one-time event; a resale is a supply, a downstream distribution is a supply. In the course of a commercial activity is the activity test: it asks about the context, not whether money changes hands. Whether for payment or free of charge settles the common misreading — a free release or open distribution still counts.
An act, not an actor
Making available is an act, not a person — which distinguishes it from the provider under Article 3(3), the who that carries the duties, and from the operator under Article 3(8), the umbrella for all value-chain roles.
Making available vs placing on the market vs putting into service
Three Article 3 concepts get tangled. The table separates them.
| Term | Article | In plain words | One-time or repeatable | Typical trigger |
|---|---|---|---|---|
| Making available | 3(10) | Any supply of a system on the Union market in a commercial activity, paid or free | Repeatable | Every supply, including each resale |
| Placing on the market | 3(9) | The first such making available | One-time | Initial market entry of the system |
| Putting into service | 3(11) | Supply for first use to the deployer, or for own use, for its intended purpose | One-time | Direct deployment without a sale |
How the three concepts relate
Placing on the market (Article 3(9)) is the first making available — the one-time species of the repeatable Article 3(10) genus — while putting into service (Article 3(11)) is the parallel one-time route for first use, with no sale. Every supply after the first is still a making available — which is why downstream actors stay in scope.
Why it matters for distributors and importers
Making available is the verb that defines the distributor: Article 3(7) sets a distributor as a natural or legal person in the supply chain, other than the provider or the importer, that makes an AI system available on the Union market.
Distributors (Article 3(7), Article 24)
Before making a high-risk AI system available, Article 24 requires a distributor to verify that the system bears the CE marking, that the EU declaration of conformity and instructions for use accompany it, and that the provider and importer have met their obligations. A distributor that knows, or should know, a system is non-conforming must not supply it.
Importers (Article 23)
Before placing a high-risk system on the market, Article 23 requires an importer to ensure the conformity assessment was carried out, the technical documentation drawn up, and the CE marking and declaration of conformity present.
When a distributor or importer becomes a provider (Article 25)
Under Article 25, a distributor or importer becomes a provider — and inherits the full Article 16 obligation stack — if it puts its name or trademark on a high-risk system, makes a substantial modification (Article 3(23)), or changes the intended purpose to a high-risk use. Take Lumenta Distribution, a 40-person Dutch reseller importing a CV-screening tool under a US vendor's brand: an importer under Article 23. The day it relabels the tool as "Lumenta Hire" and sells it as its own, Article 25 flips it into a provider — and the full Article 16 stack now sits on Lumenta.
Most general business AI is not high-risk; for those, making available mainly engages Article 4 AI literacy and Article 50 transparency, not the full Article 23/24 stack. Where it bites, most operator-obligation breaches sit at Article 99(4): €15 million or 3% of total worldwide annual turnover, whichever is higher; incorrect or misleading information to authorities sits at Article 99(5) (€7.5 million or 1%). Under Article 99(6), SMEs and start-ups are capped at the lower of the two.
When the obligations apply (timeline)
As of June 2026:
- Article 5 prohibitions and Article 4 AI literacy have applied since 2 February 2025.
- GPAI model obligations (Articles 51 to 55) have applied since 2 August 2025; that workflow remains partial and on the roadmap.
- High-risk stand-alone Annex III systems (Article 6(2)): the statute reads 2 August 2026.
The caveat must be stated plainly. The Digital Omnibus was adopted — the European Parliament passed it on 16 June 2026 and the Council on 29 June 2026 — so the deferral to 2 December 2027 is now settled, pending only publication in the Official Journal (expected before 2 August 2026), a formality. "Stop the clock" was rejected.
How Confir helps
The hard part is rarely the definition — it is tracing which supply events are makings available and which actor carries which duty across a chain. Confir classifies each supply against Article 3(9), 3(10) and 3(11), tests whether an actor has tipped into provider status under Article 25, and routes high-risk systems into the distributor and importer pre-market checklist with live dates. The synthesis engine is deterministic and rule-based — no model inference, no hallucination — so every classification traces back to the text of Regulation (EU) 2024/1689.
Frequently asked questions
What does 'making available on the market' mean under the EU AI Act?
Article 3(10) of Regulation (EU) 2024/1689 defines it as any supply of an AI system or general-purpose AI model for distribution or use on the Union market in the course of a commercial activity, whether for payment or free of charge. It is the broad, repeatable umbrella term: every supply counts, including each resale or downstream distribution. Because 'free of charge' sits inside the definition, giving a system away does not place it outside scope of the Act.
Is making available on the market the same as placing on the market?
No, though they are tightly linked. Placing on the market (Article 3(9)) is the first making available of a system on the Union market — a one-time event per system. Making available (Article 3(10)) is the broad genus: the first supply is the placing, and every later supply of the same system is still a making available. Placing is the one-time species; making available is the repeatable umbrella covering the whole chain.
Why does making available matter for distributors and importers?
The term defines their role and triggers their duties. Article 3(7) defines a distributor as a supply-chain actor that makes a system available on the Union market. Before doing so for a high-risk system, Article 24 requires it to verify the CE marking, the EU declaration of conformity and instructions for use; importers face parallel checks under Article 23. Each downstream supply is a fresh making available, which keeps these actors in scope rather than relying on the provider alone.
Does a free AI system count as being made available on the market?
Yes. The Article 3(10) definition expressly covers supply 'whether for payment or free of charge'. The test is whether the supply happens in the course of a commercial activity, not whether money changes hands. A free release, a freemium tier, or an open distribution in a commercial context all count as making available. 'Free of charge' sits in the definition precisely so that giving a system away is not an exemption from the Act.
Can a distributor or importer become a provider?
Yes. Under Article 25, a distributor or importer takes on the full provider obligations in Article 16 if it puts its name or trademark on a high-risk system, makes a substantial modification (Article 3(23)), or changes the intended purpose so a system becomes high-risk. At that point the actor is treated as the provider, not merely as one making a system available. Most general business AI is not high-risk, so for those the realistic duties are Article 4 literacy and Article 50 transparency.
Related terms
- Placing on the market — the first making available under Article 3(9)
- Putting into service — the no-sale route under Article 3(11)
- Distributor — who makes a system available downstream
- Importer — who brings a non-EU system into the market
- Operator — the umbrella for value-chain roles
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