As we wrote in one of the previous articles, the application of the Regulation on Unified Technical and Technological Requirements and Procedures for the Storage and Protection of Archival Material and Documentary Material in Electronic Form (hereinafter: the Regulation), began as of January 1, 2024, bringing with it new obligations that we will further present in this article.
I To whom does the Regulation apply?
The Regulation applies to all creators and holders of archival and documentary material in electronic form. Since the Regulation was adopted based on Article 11, paragraph 3 of the Law on Archival Material and Archival Activity (hereinafter: the Law), the terms creator and holder are interpreted in accordance with the definitions of these terms in the Law. These terms are defined to include both legal and natural persons; however, when prescribing obligations, the Law has exempted natural persons from their application, meaning that these obligations do not apply to them. Also, the penalty provisions apply only to legal entities, so, although entrepreneurs are not explicitly exempted from complying with the obligations, there are no negative consequences if they do not adhere to them. Simply put, this means that the Regulation applies only to legal entities that are creators or holders of archival material in electronic form.
In this matter, it is worth mentioning the guidance found on the website of the Historical Archive of Belgrade, which states
If you are in the status of:
Entrepreneur
Association whose founders are exclusively natural persons - Law on Associations ("Official Gazette of the Republic of Serbia," No. 51/2009, 99/2011 - other law, and 44/2018 - other law)
Representative office of a foreign business entity or branch - Companies Act ("Official Gazette of the Republic of Serbia," No. 36/2011, 99/2011, 83/2014 - other law, 5/2015, 44/2018, 95/2018, 91/2019, and 109/2021)
you are currently not obligated to submit normative acts or archival books to the Archive. If there are any eventual changes, we will promptly announce them on our website.
If the mentioned is taken into consideration, it could be said that there is a special status regarding associations whose founders are exclusively natural persons, even though it is a form that has the status of a legal entity. However, since the notice is limited to the mentioned obligations, not deriving its basis from the Law, we believe that associations should also adhere to the obligations prescribed by the Regulation.
II What does the Regulation refer to?
It is important to understand that the Regulation applies exclusively to archival and material that originated in electronic form, such as contracts signed with a qualified electronic signature, electronic invoices, electronic tax returns, and similar documents. This means that there is no obligation for documentation generated in paper form to be transferred to electronic form starting from the first of January, which is the most common source of confusion when reading the Regulation.
III Obligations from the Regulation?
In Article 11, the Law prescribes general obligations for creators and holders of archival and documentary material, which involve ensuring the preparation of archival material and documentary material for reliable electronic storage, as well as reliable storage itself. However, the Law does not specify what these obligations entail at this point, stating only that they must be fulfilled in accordance with legal acts that regulate this matter in more detail, as well as bylaws adopted on the basis of the Law—which is precisely the purpose of the Regulation.
By issuing the Regulation, the meaning of these obligations is clarified by prescribing a list of duties that creators and holders must fulfil, referring to other regukations that assist in their understanding. In the following, we will present some of the most important obligations from the Regulation, that often create confusion:
Use of informational system
The Article 11 of the Law prescribes that creators and holders must conduct electronic storage in a way that utilizes an "information system that guarantees the protection, authenticity, credibility, integrity, and usability of electronic documents." What does this actually mean? This means that electronic document storage must be carried out to meet certain conditions prescribed in legal acts, in order to ensure that the storage is sufficiently secure and reliable.
You can fulfil this obligation in two ways: by engaging one of the available providers of qualified electronic storage or by using your own information system.
If you opt for the first approach, it does not mean that you have no obligation regarding electronic document storage or preparation for its storing. Instead, the provisions of the Regulation should be read with the understanding that document storage is done by using third party's software solution that must already meet certain conditions, which you would otherwise have to provide in your information system.
If you choose the second approach, you will need to meet all the requirements of the Regulation and other legal acts related to reliable electronic storage.
Article 2 of the Regulation generally states that "creators and holders of documentary material that is permanently stored in electronic form are obliged to ensure its reliable electronic storage in accordance with the regulation governing the conditions for preparing documents for reliable electronic storage and formats of documents suitable for long-term storage until it is submitted to the competent archive."
Therefore, it is essential to consult and adhere to these regulations in order to ensure the adequacy of storing electronic documents in your own information system. The first relevant regulation is the Law on Electronic Document, Electronic Identification, and Electronic Business Operations (hereinafter: the Law on Electronic Document), which, in Articles 61 and 62, prescribes the conditions for preparing documents for reliable electronic storage, as well as the conditions that must be met for electronic document storage to be considered reliable.
In addition to the mentioned law, it is important to consult the provisions of the Regulation on the Conditions for Preparing Documents for Reliable Electronic Storage and Formats of Documents Suitable for Long-Term Storage (hereinafter: the Regulation on Conditions for Document Preparation), which, as its name suggests, further regulates the conditions for preparing documents for reliable electronic storage. Besides this act, the provisions of the Policy on the Conditions and Technological Solutions Used During Reliable Electronic Document Storage (hereinafter: the Policy) also applies to these issues.
Note: The eArchive system mentioned in the Regulation applies only to the public sector, and the private sector cannot use this system for storing electronic documents.
Mandatory adoption of internal rules
Another essential obligation from the Regulation is the requirement to adopt internal rules "governing the preparation of documentary material for reliable electronic storage." Therefore, a new obligation introduced by the Regulation involves adopting a new general act, in addition to those already mentioned by the Law.
In this sense, it is important to distinguish between general acts that were mandatory before the Regulation came into force and internal rules mentioned in the Regulation. Although the Law in Article 14 prescribes the obligation to adopt a general act "on the manner of recording, protecting, and using electronic documents," it is crucial to note that this refers to an "electronic document," while the internal rules mentioned in the Regulation apply to documentary material originally created in electronic form. This excludes documents that have been converted to electronic form after their creation. The content of these internal rules is more specific, compared to the already adopted general act based on the Law.
Regarding the content of the internal rules addressed by the Regulation, they must be in accordance with the Regulation itself and other mentioned acts, especially the Law on Electronic Document, the Regulation on Conditions for Document Preparation, and the Policy, which contain precise conditions and technical rules that must be followed in this area.
This means that a general act adopted in accordance with the Law is likely not aligned with these acts and the Regulation itself, which has recently come into force. Therefore, it is necessary either to adopt internal rules related to the preparation of documentary material for reliable electronic storage or to incorporate these internal rules into the aforementioned general act adopted based on the Law.
Keeping archival book in electronic form
The Regulation, in Article 5, prescribes the obligation to keep the archival book in electronic form. A question that often arises in practice is whether the archival book that you previously created needs to be transferred to electronic format. Since the Regulation came into effect on January 1, 2024, the obligations prescribed by it are applicable from that date onward. Therefore, documents that you created and adopted before that date do not need to be transferred to a different form.
Also, as with other obligations, it is important to always keep in mind that the Regulation applies to archival material and documentary material originally created in electronic form. In this sense, this obligation should be understood accordingly.
Adopting list of categories and submission to the competent archive
The adoption of the list of categories and obtaining approval for it was mandatory even according to the Law, before the adoption of the Regulation. This means that if you operate in accordance with the Law, you already have adopted this document, which you submitted for approval to the competent archive (except in certain cases, depending on the competent archive – read more about this in our article).
However, the specificity regarding the list of categories according to the Regulation pertains to the way it is submitted to the competent archive and obtaining approval. The obligation from the Regulation specifies that, in addition to adopting the list of categories, it is also mandatory to submit it in electronic form to the competent public archive in the eArchive Portal via eGovernment.
Other obligations
The Regulation prescribes other obligations for creators and holders regarding the handling of archival and documentary material in electronic form, from its creation to the question of permanent storage and potential destruction. These obligations include confirming the fidelity of the original documentary material and the accuracy of metadata with a qualified electronic signature or a seal, keeping records of actions taken in the process of preparation for electronic storage and electronic archiving, and others.
The obligations from the Regulation have specificities compared to the Law, considering the Regulation's subject matter. For instance, the separation of documents with expired retention periods for destruction is specific because the request for destruction is also submitted electronically, via the eArchive through the eGovernment portal, along with the approval from the archive. Therefore, we advise familiarizing yourself with the provisions of the Regulation to align your procedures with all the obligations it prescribes.
In this text, we presented some of the most important obligations from the Regulation and other legal acts it refers to, clarifying uncertainties that may arise regarding them. If you want to learn more about other obligations you have in accordance with the Law, you can read our article on this topic.
If you have additional questions or need assistance regarding aligning your business with the Law or drafting general acts, you can contact us at office@r-legal.net.
Note: The information provided in this article is solely for informational purposes and does not constitute legal advice.
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