The Law on Archival Materials and Archiving Activities („Official Gazette of the RS“, no. 6/2020) („Law“) – regulating the system of protection of Archival Materials and Documentary Materials, the conditions and manner of using archival Materials, the organization, authority and activities of archives in the Republic of Serbia – is being implemented as of February 2021. In this text we will address certain issues and dilemmas concerning its implementation, which might be of interest for companies and entrepreneurs (private sector).
What is the subject matter of the Law and to which extent does it apply to companies?
The Law aims to regulate the system of protection, conditions and ways of keeping and using (i) Archival Materials and (ii) Documentary Materials and determines the obligations of the Creators and Holders of Archival Materials and Documentary Materials.
The Law first defines the term “Creator of Archival Materials and Documentary Materials” (“Creator”) and “Holder of Archival Materials and Documentary Materials” (“Holder”).
The Creator is a legal entity or a natural person whose activities generate Archival Materials and Documentary Materials.
The Holder is the holder of the right to Archival Materials and Documentary Materials (owner, i.e. holder of another real right or a party in an obligatory relationship) or any other (legal or natural) person who, in any way and on any basis, has ownership over it.
It must be underlined that Documentary Materials represent a set of documents or records, in original or reproduced form, regardless of the form of recording (e.g. printed materials, electronic form) created or received through activities and work (i) of the state bodies and organizations, territorial autonomy and local self-government units, (ii) institutions, public enterprises, holders of public authority, (iii) companies, entrepreneurs, persons engaged in registered activities, (iv) religious communities, as well as other legal or natural persons.
On the other hand, Archival Materials represent a separate part from the Documentary Materials, which was created through the work and activities of the same subjects as in the Documentary Materials, but which are of lasting importance for culture, art, science, education and other social categories, which is why it is permanently stored.
Therefore, we can conclude that the Law also applies to entrepreneurs, companies established and registered in the Republic of Serbia, given that their work and daily activities create the materials that can, according to the Law, be classified in the category of Documentary or Archival Materials.
The main difference between Documentary Materials and Archival Materials is that Archival Materials is a narrower term because it is a part of Documentary Materials which is of permanent, almost general importance. As a result, it is extracted from Documentary Materials and permanently kept in its original form.
As opposed to that, Documentary Materials represent the sum of all documents and records created by the work of the mentioned subjects, without the obligation of its permanent preservation in the original form in which it was created.
From this we can conclude that for Documentary Materials the Law does not prescribe the deadlines for storage, hence the regulations apply in relation to a specific type of Documentary Materials created by a company (e.g. Law on Companies, Law on Accounting, Law on Records in Areas of Work).
For example, pursuant to the Companies Act, a limited liability company has the following obligations to store acts and documents:
|– Memorandum of Association;|
– Decision on registration of the company’s formation;
– General acts of the company;
– Minutes from the sessions of the Assembly and decisions, minutes of the meeting of the Supervisory Board, if the management of the company is bicameral;
– Acts on the formation of a branch or other organizational unit;
– Documents proving the ownership and other property rights of the company;
|Documents stored permanently|
|– Reports of the director and supervisory board of the company, if the management of the company is bicameral;|
– Records of addresses of directors and members of the Supervisory Board;
– Records of addresses of company members.
|Documents stored for at least 5 years, after which they are stored according to the regulations on archival Materials|
Which new obligations are prescribed by the Law for companies?
Most of the obligations of Creators and Holders provided by the Law were already regulated by the previous regulations, but the Law introduces three new obligations for companies, as follows:
- Obligation to appoint a responsible expert for the protection of Archival Materials and Documentary Materials and for handling the Archival Materials and Documentary Materials;
- Obligation to keep an archive book on the prescribed form for all Creators and Holders on an annual basis;
The archive book is a prescribed form that is available for sale, and there is also an archive book in electronic form. It is recommended to use and keep the archive book in electronic form.
There are no obstacles for each Creator/Holder to create their own archive book in electronic form, like the example we give below:
Keeping an archive book means that the following data on Documentary Materials are entered into the book on a daily basis:
- ordinal number of the Documentary Material (archive number assigned in compliance with the chronological order),
- date of entry,
- year of origin or range of years,
- content-classification mark,
- amount of the materials,
- storage location,
The Historical Archive of Belgrade has provided the instructions for legal entities on how to keep an archive book.
In addition to the obligation to keep the archive book, the Law also prescribes the obligation (a) to submit transcripts of the archive book to the competent archive no later than April 30 of the current year, for Documentary Materials created in the previous year, (b) to enter the complete Documentary Materials in the archive book and inventorying registry units (such as boxes, folders, etc.) with archive tags.
The assigned archive tags must contain:
- name of the Creator of Documentary Materials,
- content of Documentary Materials,
- year of origin of the Materials or range of years,
- classification mark,
- number from the archive book.
According to the Opinion of the Ministry of Culture and Information No. 011-00-71 / 2021-02 of 29 April 2021, the obligation to submit a copy of the archive book to the competent archive for companies begins in 2022.
3. The obligation to adopt the following acts:
(i) General act about the manner of recording, classifying, archiving and storing archival Materials and documentary Materials
The obligation to adopt this act was prescribed before as well, but the act was instead called the “Rulebook on Office and Archive Operations”.
(ii) List of Categories of Documentary Materials with storage deadlines
Consent to this act of the company is given by the competent archive. It is necessary that the List be provided with a visible stamp – consent of the competent archive.
- Defines the categories of Documentary Materials;
- Establishes the storage deadlines pursuant to the Law and other regulations;
- Valorizes the Materials and determines Archival Materials.
The Historical Archive of Belgrade prepared the instructions on how to prepare the List of Categories.
(iii) General act about the manner of recording the protection and usage of electronic documents
The adoption of an appropriate bylaw is still pending in order for companies to adopt this act in an adequate manner, given that it only applies to electronic documents.
What are the penalties for non-compliance with this Law?
Regarding the violation of obligations prescribed by the Law, they are categorized as a misdemeanor for which the Law prescribes fairly high fines, as follows:
- from 50,000 to 2,000,000 dinars for a legal entity;
- from 5,000 to 150,000 dinars for the responsible person in the legal entity.