The new year is approaching, and with it, in addition to the festive atmosphere and New Year’s gifts, come the obligations prescribed by the Law on Archival Material and Archiving Activities (“Official Gazette of the RS”, No. 6/2020) (“Law“). We already wrote about the Law, its application, subject and scope, and in this text we will briefly point out the obligations that the Law brings in 2022.
To remind you, the Law defines and regulates Documentary Material and Archival Material. Documentary Material is a set of documents or records, in original or reproduced form, regardless of the form of recording (e.g. printed material, electronic form) created or received by the action and work (i) of state bodies and organizations, territorial autonomy bodies and local self-governments, (ii) institutions, public enterprises, holders of public authority, (iii) companies, entrepreneurs, persons engaged in registered activities, (iv) religious communities, as well as other legal entities or natural persons. On the other hand, Archival Material is a separate part of the Documentary Material, which was created by the work and activities of the same subjects as in the Documentary Material, but which is of lasting importance for culture, art, science, education and other social fields, which is why it is to be permanently stored.
Therefore, it is necessary to distinguish between Documentary Material and Archival Material, because Archival Material is Documentary Material, but not every Documentary Material is also Archival Material. Companies and entrepreneurs produce documentary material, but only in exceptional cases can certain documentary material be classified as archival material (if it is of lasting importance for culture, art, science, education and other social areas).
Consequently, the Law applies to entrepreneurs and companies established and registered in the Republic of Serbia, given that their work and daily activities create the material that according to the Law can be classified in the category of Documentary Material, and in exceptional cases in the category of Archival Material.
Entrepreneurs, as Creators, are only obliged to responsibly keep their Archival Material and Documentary Material in an orderly and safe condition in the form in which it was created. On the other hand, the obligations for legal entities as Creators are much broader and relate, among other things, to keeping the Archive Book and submitting its transcript to the competent archive, appointing a responsible expert for the protection of archives and documents, providing adequate space and equipment for accommodation and protection of Archival Material and Documentary Material, and the like.
In any case, the Law imposes the obligation to keep the Archive Book on an annual basis. The Archive Book is essentially a general overview of the entire Documentary Material of one subject, which is kept on the prescribed form available for sale, and also available in the electronic form.
Having in mind that the Law has been in force since 2 February 2021, there is an obligation to submit a transcript of the Archive Book to the competent archive (Article 9 of the Law) no later than 30 April 2022 for Documentary Material created in 2021.
Additionally, all legal entities and other creators of Documentary Material who have not kept an Archive Book so far, will be obliged to retroactively compile it from the day of their establishment and submit their transcript to the competent public archive.
How to find out which is the competent archive to which you should submit a transcript of the Archive Book for 2021?
Companies submit their transcript of the Archive Book for 2021 to the competent archive at the beginning of 2022, i.e. by 30 April 2022 at the latest. The question arises, however, which is the “competent archive” in relation to the headquarters of the company, i.e. the Creator of Documentary Material?
For example, how can company “A” with its registered office in Bečej and company “B” with its headquarters in Belgrade know to whom to submit transcripts of their archive books?
In order to answer this question and facilitate the fulfillment of this obligation, we draw attention to the Decision on Determining the Territory of Archives (“Official Gazette of the RS”, No. 7/96) (“Decision“) which regulates the local jurisdiction of each archive.
The Decision can be easily found by visiting the website of the Ministry of Culture and Information of the Republic of Serbia, and after reading it, we can conclude that in our example:
- for the company “A” with its headquarters in Bečej, the Historical Archive of Senta is competent, to which the company “A” submits its transcript of the Archive Book,
- for the company “B” with its headquarters in Belgrade, the Historical Archive of Belgrade is competent, to which the company “B” submits its transcript of the Archive Book.
Registration of a company with the competent archive
Now that we have (i) determined that there is an obligation for companies to submit a transcript of the Archive Book for 2021 and (ii) provided guidelines on how each company should determine to which archive to submit its transcript of the Archives, we point out the need for the prior registration of the company with the competent archive, before sending a transcript of the Archive Book.
Namely, in order for a company to be able to submit a transcript of the Archive Book to the competent archive, it is necessary that the company previously “registers” with its competent archive by submitting to the competent archive:
- Excerpt from the Business Registers Agency (“BRA“);
- List of categories of Archival Material and Documentary Material with retention periods, to which the competent archive gives its consent (submit 2 copies in the original);
- Request to the competent archive for approval of the List of categories of Archival Material and Documentary Material with retention periods;
- General act of that company on the manner of recording, classifying, archiving and storing Archival Material and Documentary Material (submit 2 copies in the original);
- General act of that company on the manner of recording, protection and use of electronic documents;
- Decision of the company on appointing a responsible expert for the protection of Archival Material and Documentary Material.
The layout of the Archive Book, instructions for keeping the Archive Book, as well as models of all acts that a company is obliged to adopt in order to register with the competent archive can be found in our previous article in which we discussed the application of the Law.
Supervising the implementation of the Law
One of the issues that is certainly of interest to all Creators of Documentary Material is how the implementation of the Law will be supervised. Does the competent archive have the capacity to monitor and check whether all taxpayers have submitted the transcripts of the Archive Book, i.e. whether they have complied with this obligation in due time and in the prescribed manner?
We are of the opinion that the supervision of the implementation of the Law will be performed after a certain time, by each archive making a breakdown and comparing all registered entities based on the territory of that archive and then comparing it with its records of registered entities.
Thereby, each competent archive can determine the following through “office control”, i.e. without going to the field:
(i) which legal entities established on the territory of that archive have not registered,
(ii) which legal entities established on the territory of that archive have not obtained the necessary consent of that archive for the List of Categories of Archival Material and Documentary Material,
(iii) which legal entities established on the territory of that archive have not submitted a transcript of the Archive Book,
and then prepare the requests for initiating misdemeanor proceedings against these legal entities for non-compliance with the Law.
Having in mind the above, we can assume that the supervision of the implementation of the Law does not require the engagement of field control and a large number of inspectors who would “on the ground” determine the factual situation by coming to the business premises of the Creators of Documentary Material.
We have reached this conclusion based on the previous control and actions related to economic offenses concerning the Law on Accounting, which prescribes the obligation to submit financial and other reports to the Business Registers Agency (“BRA“) within certain time limits. After the expiration of that deadline, BRA inspects its records and checks which registered entities failed to submit reports within the prescribed deadlines, and then initiates court proceedings against entities which did not submit the required reports.
Given that 2022 is getting closer, we advise all companies and other creators of Documentary Material, to first:
(i) determine which the competent archives are in relation to their registered office, as described in this Article,
(ii) get “registered” with the competent archive and obtain the consent of the competent archive to the List of categories of Archival Material and Documentary Material with retention periods,
and then, by 30 April 2022 at the latest:
(iii) submit a transcript of the Archive Book to the competent archive, signed by the company’s archivist (the person appointed by the decision as the responsible expert for the protection of Archival Material and Documentary Material in the company).
In this way, they will avoid violating the obligation to submit transcripts of the Archive Book to the competent archive, for which the Law has prescribed a fine in the amount of:
- 50,000 to 2,000,000 dinars for a legal entity
- 5,000 to 150,000 dinars for the responsible person in a legal entity.