Review of most important obligations prescribed by The Act on Archival Material

The Act on Archival Material and Archival Activity (“Official Gazette of RS”, No. 6/2020), hereinafter the Act, prescribed new obligations for legal entities in the Republic of Serbia. Application of the Act started on February 2 nd , 2021, and although there are yet to be adopted by laws regulating its application and obligations of legal entities, significant number of its provisions is to be applied directly.

The Act itself establishes new obligations for legal entities, in addition to the already existing ones, but also prescribes penalties for non-compliance with the obligations prescribed by this Act.

1. To fulfill the obligations prescribed by the Law, legal entities in the Republic of Serbia are obliged to adopt:

1. Decision on appointing an expert for the protection of archival material and documentary material, as well as on the manner of dealing with archival material and documentary material – expert person should be a person who works in the company;
2. General act on the manner of recording, classifying, archiving and storage of archival material and documentary material;
3. General act on the manner of recording, protection and use of electronic documents;
4. List of categories of archival material and documentary material with retention periods. List of categories is formed according to the categories of documentary material possessed by the creator or holder of archival material and documentary material, while retention periods of various records and documents are determined by special laws. Legal entity is obliged to submit to the competent archive List of categories in paper form for the purpose of giving consent to the determined List of categories.

2. Furthermore, legal entities are obliged to:

1. Keep the Archive book in the prescribed form (until the adoption of the new form of the archive
   book, it is necessary to keep it according to the previously used form);
2. Submit to the competent archive a transcript of the archive book not later than April 30th of the current year for documentary material created in the previous year.

Regarding obligations for keeping and submitting Archive book, we wish to point out that Historical Archive of the City of Belgrade extended the period for submitting the transcripts of the Archive book until the end of 2021, due to current epidemiological situation. We advise that all legal entities that are not territorially under the supervision of the Historical Archive of the City of Belgrade check with the competent archives whether they have extended the deadline for submitting transcripts of the Archive book.

Also, although application of the Act started in February 2021, according to the official statement of the Historical Archive of the City of Belgrade, legal entities are expected to deliver the transcripts of the Archive book for 2020 as well, and it is expected that those transcripts include list of documents starting from establishing of the legal entity up until 2020. Although we consider this interpretation disputable, we advise that legal entities act in accordance with it.

3. Also, in accordance with the above regulation, legal entities in the Republic of Serbia are obliged to carry out the following actions:

1. Provide adequate space and equipment for storage and protection of archival material and documentary material;
2. Record, mark, classify, date and archive archival material and documentary material.

4. In addition to the above general obligations for all legal entities in the RS, the legislator has provided additional obligations of legal entities that they apply in special cases, namely:

1. Obtaining the opinion of the competent archive before taking measures related to archival material and documentary material (status changes, physical relocation, adaptation of space, opening of bankruptcy or liquidation, microfilming, digitalization, etc.);
2. Selection of archival material and allocation for the purpose of destruction of worthless documentary material whose storage period has expired, one year after the expiration of the established storage period;
3.  Enabling the authorized person of the competent public archive to perform professional supervision over the recording, classification, selection, archiving, storage, professional maintenance and protection of archival material, i.e. over its selection from documentary material;
4. Acting in accordance with the measures and deadlines imposed by the competent archive by a decision and on the basis of a previously made record on the determined state of protection of archival material and documentary material;
5. Informing the competent archive about its establishment, as well as about all changes in the status and organization (change of status and / or name, change of organization, change of address, as well as termination of work) within 30 days from the day of the change.

5. Penal provisions. For non-compliance with the obligations established by the Act, the Act prescribes the possibility of fining the perpetrator for misdemeanor, as follows:

• Legal entity in the amount of 50,000.00 – 2,000,000.00 RSD, as well as
• The responsible person in the legal entity in the amount of 5,000.00 – 150,000.00 RSD.

6. In the end, we consider that the Act, formulated as is, imposes significant and disproportionate obligations to companies.

For instance, obligation of regular and comprehensive reporting to the competent Archive, even in the case of a change of the registered seat, which is publicly available in the register of Business Register Agency, causes significant burden of resources of a company.

On the other hand, competent Archives shall be forced to allocate significant resources on the process of formal control of delivered documentation, which potentially may lead to problems in performance of their core activity – protection of archival material.

We are hoping that the legislator shall in the following period notice those flaws in the Act and amend it in a way that is no treat to general interest but at the same time reduces obligations of the companies to an acceptable level.