The new Law on archival material and archival activity (“Official Gazette of RoS“, no. 6/2020, hereinafter referred to as the: “Law”), entered into force on February 1st, 2020, and shall be applied as of February 2nd, 2021. The aim of the Law is to create a new legal framework that ensures the protection of archival material regardless of the form in which it is created and where it is located, as well as a completion of legal regulations regarding archival material created in electronic form in a way that guarantees preservation of the data that it contains.
The Law not only takes into account the current circumstances in business operations by accepting the electronic form of archival material but it also introduces a series of other novelties, obligations and penalties. The obligations of the entities are specified and enumerated and refer to all entitites that receive, record and archive business documentation in their daily work, and the penalties for non-compliance with the provisions prescribed by the Law have been increased in relation to the previously valid law.
Among other things, the Law regulates the competence and obligations of archives, the organization of archival activities, penalties for non-compliance with the provisions of the Law, obligations of business entities regarding archiving, as well as categorization and valorization of documentary material.
First of all, the Law applies to all creators and holders of archival material and documentary material, regardless of their size, bearing in mind that in the process of work of each legal entity certain documentary material is created, regardless of the format and form in which it is recorded. In that sense, in the procedure of protection of archival material and documentary material outside the archives, archives will have equal jurisdiction over a company of a few thousand employees and over an entrepreneur with only a few employees.
Among other obligations, the entities to which the Law is being applied, that is all legal entities, both from the private and public sector as well as natural persons performing business activities, should appoint a responsible expert for the protection of archival material and documentary material and for handling archival material and documentary material, they should also keep an archival book on the prescribed form, should adopt a general act on the manner of recording, classification, archiving and storage of archival material and documentary material, should adopt a list of categories of documentary material with retention periods, as well as a general act on the manner of recording the protection and use of electronic documents.
The archive book is kept on the prescribed form and submitted to the competent public archive by April 30th of the current year for the documentary material created in the previous year. The archive book is a general inventory of complete documentary material created in the work of the creator/holder of documentary material, as well as documentary material and archival material, which is situated in the creator’s premises on any basis.
There are no explicit criteria when it comes to determining the responsible expert for the protection of archival material and documentary material. If there are no conditions to establish the new position of archivist in the systematization, it is desirable that the said expert be the person who has the most contact with documentary material in his/her daily work and knows it best. From practice, it can be concluded that these are most often people who work in the accounting or legal department.
The list of categories of archival material and documentary material, in addition to accounting and legal documentation, must also contain categories of documentation from the main activity of the company. The names of the categories from the list of categories and the retention periods must be identical to the names of the categories and the deadlines entered in the archive book. The proposal of the list of categories of documentary material with retention periods is sent to the competent archive for approval.
In addition to the abovementioned, the Law stipulates a number of other obligations for creators and holders of archival material and documentary material, such as the obligation to provide adequate space and equipment for storage and protection of archival material and documentary material, obligation to ensure a permanent storage of archival material in electronic form, the obligation to notify the competent archive on its establishment within 30 days, as well as on all changes in status and organization (change of status and/or name, change of organization, change of address, as well as termination), obligation to adopt a plan of measures for protection of archival material and documentary material in case of risk of catastrophes and emergency situations in accordance with the law etc.
It should be noted that the application of the Law will not create new costs for citizens and the economy when it comes to dealing with documents that are originally created in paper because the obligations provided for creators and holders of archival and documentary material do not differ significantly from existing regulations which refer to the storage, classification, archiving of documents, selection of archival material, extraction of worthless registry material, handing over of archival material, etc.
However, having in mind that the economy subjects performing their business activities also produce archival material that is originally created in electronic form, it will have to be stored in accordance with the provisions of the Law and regulations governing reliable electronic storage, in order to ensure its preservation. In that sense, the economy will not have additional costs other than those already based on the application of regulations governing reliable electronic storage. We especially note that the application of the Law will cause an increased demand for adequate computer equipment, as well as for equipment for microfilming, digitization and conservation of documents.
For non-fulfillment of obligations prescribed by the new Law, a legal entity will be fined for misdemeanor in the amount of 50,000.00 up to 2,000,000.00 dinars, depending on the violation, and the responsible person in the legal entity will be fined with up to 150,000.00 dinars.