New Obligations For Legal Entities In Serbia
The Law on Archival Material and Archival Activities determines new obligations for legal entities
At its session held on January 24, 2020, the National Assembly of the Republic of Serbia adopted the Law on Archival Material and Archival Activities (“Official Gazette of the RS” No. 6/2020, “Law”). The Law entered into force on the eighth day from the day of its publication in the “Official Gazette of the RS”, and its implementation began on 2 February 2021.
This Law regulates the system of protection of archival material and documentary material, determines the conditions and manner of use of archival material, determines the legal regulations relating to archival material originally created in electronic form, as well as the competence and activity of archives in the Republic of Serbia.
It clearly defines the obligations of all creators and holders of archival material and documentary material. In order to better understand when the legal obligation applies, we will single out the legal definitions of creator and owner.
The creator of archival material and documentary material is a legal or natural person whose activities create archival material and documentary material (“Creator”).
The holder of archival material and documentary material is the holder of the right to archival material and documentary material (owner, i.e., holder of another property right or party in an obligatory relationship) or any other (legal or natural) person who, in any way and on any basis holds it (“Holder”).
Therefore, the obligations provided by the new Law refer to legal and natural persons who meet the stated criteria. Entrepreneurs, associations whose founders are exclusively natural persons, a branch or representative office of a foreign company, do not currently have the obligations prescribed by this Law.
The Law provides for the following obligations:
- Adoption of general acts
The Ministry of Culture and Information submitted an opinion to the Historical Archives of Belgrade, according to which the deadline for drafting mandatory general acts for all legal entities is extended until 31 December 2021, due to difficult business conditions and in accordance with the Law. This is an obligation prescribed by Article 14 of the Law, and it concerns the drafting of the following normative acts:
- General Act on the Manner of Recording, Classifying, Archiving and Preserving Archival Material and Documentary Material
This act regulates the receipt, review and distribution of mail received by direct delivery, by mail or electronic means of communication, recording of acts and objects and their delivery, administrative and technical processing of acts and objects, sending mail, archiving, use and professional archive maintenance, selection of archival material and destruction of worthless documentary material, handing over archival material to the competent historical archive, etc. The act should be personalized and harmonized with the business needs of the specific Holder / Creator.
- General act on the manner of recording, protection, and use of electronic documents
This act regulates electronic office operations, manner and procedure of working in the information system, protection of electronic documents, access to information systems, obligations of the company as Creator and Holder of archival material and documentary material in electronic form, etc. The act should be personalized and harmonized with the business needs of the specific Holder / Creator.
- List of categories of archival material and documentary material with retention periods
This act is compiled in the form of a table in which a list of categories of archival material is entered, i.e., documentary material with retention periods, created since the establishment of the Creator / Holder, and which will be created in the following period. For permanent preservation, categories of materials are determined that contain data of importance for history and other scientific fields, for culture in general and other social needs or data that reflect the essence of the work of the Creator / Holder.
For documentary material that has not been assessed as archival material for permanent storage, storage deadlines are determined depending on the needs of the Creator / Holder for use for practical purposes, as well as in accordance with special legal regulations.
The competent public archive gives consent to the list of categories of archival material and documentary material with retention periods.
- Archive book
- Obligation to keep an archive book
All Creators / Holders of archival material and documentary material, except natural persons, are obliged to keep the archive book, so these entities are obliged to keep it: state bodies and organizations, bodies of territorial autonomy and local self-government units, institutions, public companies, holders of public authority, economic companies and other legal entities. The archive book represents the inventory of documentation. The contents of the documents themselves, as well as their titles, are not entered in the archive book, but the quantity of documents created in a calendar year is listed in groups, gathered by categories. Also, physical location where these documents are located is entered. Only original documentary material is entered in the archive book, not copies. The archive book is not kept separately for each year, but continuously. She is one, unique and central. Once given, the ordinal number in the archive book is not repeated. It is recommended not to mix categories in the same binder or other storage location, but if they do mix, mix those that have the same retention period. Storing categories with the same retention period in the same place makes it easier to extract worthless documentary material – in other words, to destroy expired documents. If the bundles of documentation were created in one calendar year and refer to the same category of documentary material, they receive an identical archive mark. If the archive book is not kept, all documentation from the past years should be listed.
If the archive material is handed over to a third party – the company that keeps the documentation, it is necessary to inform the competent archive with a list of the submitted archive material. Also, in case the archive material is destroyed in a fire, flood, hacker attack, etc. it is necessary to enter a remark in the archive book and inform the competent public archive.
- Obligation to submit a transcript of the archive book
A transcript of the archive book is submitted no later than 30 April of the current year for documentary material created in the previous year, and if you have not submitted the archive book so far, then you have to submit a copy of the entire archive book, when submitting for the first time. For now, the transcript of the archive book is submitted in paper (e.g., photocopy) or printed form, certified (if the Creator uses a stamp) and signed by the responsible person to the Creator. The idea is to enable electronic submission of transcripts in the future.
Other obligations provided by the Law
In addition to the above, the Law prescribes for the Holder / Creator of archival material or documentary material the obligation to:
- provide adequate space and equipment for the storage and protection of archival material and documentary material;
- appoint a responsible expert for the protection of archival material and documentary material and the handling of archival material and documentary material;
- records, marks, classifies, dates and archives archival material and documentary material;
- hand over archival material to the competent archive under the conditions and within the deadlines provided by the Law;
- ensure the permanent storage of archival material in electronic form, its maintenance, migration, i.e. transfer to new media in the prescribed formats until the surrender of archival material in electronic form to the competent public archive;
- obtain the opinion of the competent archive before taking measures related to archives and documentary material (status changes, physical relocation, adaptation of premises, opening of bankruptcy or liquidation, microfilming, digitization, etc.);
- selects archival material and separates for destruction worthless documentary material whose storage period has expired, one year from the date of expiration of the established period;
- enable the authorized person of the competent public archive professional supervision over the recording, classification, selection, archiving, storage, professional maintenance and protection of archival material, i.e. over its selection from documentary material;
- act in accordance with the measures and deadlines imposed by the competent archive by a decision and on the basis of a previously made record of the determined state of protection of archival material and documentary material;
- inform the competent public archive about all changes that are important for the archive material no later than 30 days from the day of their occurrence.
More words about the conditions for providing adequate space and equipment for the storage and protection of archival material and documentary material with the Creator and Holder of archival material and documentary material will be in one of the following texts.