Archiving business documentation in the future

By adoption the new Law on Archival Material and Archival Activity („Official Gazette of the RS”“, No. 6/2020) (hereinafter: The Law), which was brought by the National Assembly of the Republic of Serbia on January 24th, 2020. year, after the flow of vacatio legis a little more than a year, the new Law which deals in detail with the issue of archival material and documentary material, began to apply on 02.02.2021 and we can say for sure that nothing will be the same in this area.

The new Law regulates a wide aspect of issues related to archives, determines the conditions for the protection of archives and documentary material, determines the legal regulations relating to archives originally created in electronic form, the competence and activities of public (but also leaves space for popularization and establishment of private archives in terms of special business activities) archives in the Republic of Serbia.

The most important novelty for business entities and companies in the Republic of Serbia is the introduction of new obligations regarding the handling of archival material and documentary material, where the goal of the Legislator is to introduce order and discipline in this area by evident introduction of procedures in a way of periodic reporting like in the European Union.

For the Legislator, the creator and holder of archival material is any legal entity (or natural person) whose business activities create archival material.

The creators of archival material are primarily obliged to adopt appropriate internal general acts in this area in accordance with the provisions of Article 14. of the Law, according to which, each creator is obliged to adopt:

1. General act on the manner of recording, classification, archiving and storage of archival material and documentary material;
2. List of categories of archival material and documentary material with retention periods;
3. General act on the manner of recording, protection, and use of electronic documents.

The competent public archive gives consent to the List of categories of archival material and documentary material with retention periods.

The creators of archival material in each company must appoint a responsible person (who is employed by the company which is a creator of archival material) for the protection of archival material and documentary material and the handling of archival material and documentary material.

Although the old Law on Cultural Heritage (“Official Gazette of the RS”, No. 71/94, 52/2011 – other laws, 99/2011 – other law and 6/2020 – other law) among other things, dealt with the issue of archiving and storing documentation, prescribed the obligation for legal entities to keep the Archive Book, a small number of creators of archival material actually fulfilled this obligation. Because the fact is that due to the lack of an adequate sanction that would be applied in practice, a large number of creators of archival material neglected this obligation.

The new Law introduces the obligation of the creator of archival material to submit to the competent public archive regarding the place of the headquarters, a transcript of the Archive Book no later than April 30 of the current year, for documentary material created in the previous year, in case of failure to comply with this obligation, the legal entity can be punished with a penalty of up to 2,000,000.00 dinars. All legal entities and companies that have not kept the archive book properly in the past, will be obliged to compile it retroactively (from the day of the incorporation) and certify it before the competent public archive.

The Law also introduces an obligation for the creators of archival material that they must inform the competent public archive about the any change during business activity and any future status change, change of address or business name, as well as in case of opening bankruptcy or initiating liquidation. As we know public archives in the Republic of Serbia have limited personnel and space for regular activities it remains to be seen how this issue will be resolved in the future.

For the first time, the provision of Article 11 of the Law also regulates the issue of archival material and documentary material in electronic form, according to which:

,,The creator and holder of archival material and documentary material in electronic form is obliged to carry out procedures related to document management, as well as to use the information system, which guarantees protection, authenticity, integrity and usability of electronic documents.

The creator and holder of archival material and documentary material prepares archival material and documentary material for reliable electronic storage and reliable electronic storage of archival material and documentary material in accordance with the regulations governing reliable electronic storage and in accordance with regulations adopted pursuant to this Law.”

All documents which creator of archival material creates in the performed activity and in the regular business activity as a document in electronic form, which is suitable for signing with a qualified electronic certificate, in that (electronic form) the documents are kept in the future. Archival material is kept permanently in the form in which it was created, which means that if the documentary material, which is classified as archival material, was created in paper form, it must never be destroyed, regardless of the procedure of its digitization (which does not mean that it cannot be digitized, moreover, such a thing is desirable, but only for operational purposes, by no means as a way of permanent storage). On the other hand, a form of documentary material, which is not electronic and for which a permanent retention period is not prescribed, can be destroyed before the expiration of the prescribed retention period, if it is saved in the form of qualified electronic document.

In this moment we have a new way of legal regulation one of the aspects of regular business of the company and we look forward to the adoption of appropriate bylaws, which should be adopted during this year or on the beginning next year and which should further define our future rights and obligations in the archiving process.