Category: Serbia

All citizens of a legal and democratically governed state should have the opportunity to enjoy free education, health, police and judicial protection, clean streets and much more that is perceived as “free of charge”. However, in order for such a social system to function properly and efficiently, one of the basic constitutional principles of public finances must be realized, and that is to properly honour and respect the obligation to pay taxes.

Otherwise, in modern and regulated states, proper fulfilment of this obligation is considered as the general obligation of every individual in strengthening the stability and capacity of the state as an organization.

On the other hand, by delaying or evading payment of taxes, tax payers not only commit tax offences, but also endanger the domestic economy, thus, jeopardizing provision of the state “services” to its citizens.

Therefore, all modern states prescribe appropriate penalties for various types of tax offences. And the most serious tax offences are, in fact, tax criminal offences that represent a type of illegal tax evasion that occurs when tax payers knowingly violate tax regulations in order to avoid fulfilling the obligation to pay taxes.

Among the tax criminal offences, which belong to the criminal offences against the economy, bellow we will specifically refer to tax evasion.

Regulatory framework

Namely, the criminal offence of tax evasion is regulated by the Criminal Code of the Republic of Serbia (“CC”).

The corresponding provision of the aforementioned regulation reads as follows:

“(1) Whoever with intent to fully or partially avoid payment of taxes, contributions or other statutory dues, gives false information on acquired income, objects and other facts relevant to determination of such obligations, or who with same intent, in case of mandatory reporting (filing of returns) fails to report acquired income, objects and other facts relevant to determination of such obligations or who with same intent conceals information relevant for determination of aforementioned obligations, and the amount of obligation whose payment is avoided exceeds one million dinars, shall be punished by imprisonment of one to five years and fined.

(2) If the amount of the liability specified in paragraph 1 of this Article whose payment is avoided exceeds five million dinars, the offender shall be punished by imprisonment of two to eight years and fined.

(3) If the amount of the liability specified in paragraph 1 of this Article whose payment is avoided exceeds fifteen million dinars, the offender shall be punished by imprisonment of three to ten years and fined.”

Object of protection and forms of manifestation

Therefore, according to the valid CC, the object of protection of this criminal offence are taxes and contributions that are paid on the acquired income and items.

Otherwise, tax evasion has three basic and two qualified, more serious forms, where the basic forms are (a) giving false information about income / items / relevant facts, or (b) non-reporting of income / items / relevant facts, or (c) concealment income / case / relevant facts data.

Qualifying circumstances of this crime represent higher amounts of avoided obligations, over five million dinars for the first qualified form, and over fifteen million dinars for the second.

Act of Commission

First of all, it should be pointed out that in the theory of criminal law, a substance of the crime is defined as a set of elements that make up the characteristics of a criminal offence and distinguish it from other criminal offences regulated by law.

These elements derive from the legal description of the crime, and can be objective and subjective in nature.

The objective elements of corpus delicti (which Latin term had been used in the past by some old criminal law theorists for essential elements of the crime) are the act of commission, subject, object and consequence, as well as the manner, place and time of execution (which more closely determine the act of commission and concretize the criminal offence).

Subjective elements of a criminal offence, on the other hand, concern the offender’s attitude towards the committed act, and these are negligence and criminal intent (which are also forms of guilt), and less often intention and motive.

The act of commission of the basic form of criminal offense of tax evasion is alternatively prescribed, so the crime is committed by committing any of them (“who… gives false information on acquired income, objects or other facts relevant to determination of such obligations… or, fails to report acquired income, objects and other facts relevant to determination of such obligations…or, conceals information relevant for determination of aforementioned obligations…“). 

In such context, the first basic form of act of commission of tax evasion is being committed by one “who gives false information on acquired income, objects or other facts relevant to determination of such obligations”, in which subject is usually a tax payer, be, for example, a natural person (who does not perform business activity) when filing for capital gains tax, or an entrepreneur, or even a legal entity and a person in charge in such a legal entity.

It is also interesting that there is even the case law per which the executor can only be a director or an owner of a company, but not an employee, even though the law does not make such limitations (Judgment of the Belgrade Court of Appeals, Kž. No. 169701/2012 as of 29.01.2013).

The act of commission of the tax evasion crime is also executed by the one “who fails to report acquired income, objects and other facts relevant to determination of such obligations”.

So, this is not about giving false information, but about failing to file a tax return at all, about late filing of tax return or filing an incomplete tax return – so it is a criminal offence of inaction.

In this type of the act of commission, it may be  quite some challenge for the prosecution to prove the intention to evade taxes.

Does intention, as an obligatory element, exist in the passive behaviour of the defendant?

In that sense, although the eventual defence of the tax payer in this situation may go in the direction of invoking a mistake of law (non-reporting of taxes as a consequence of ignorance or misinterpretation of the law), proving that the act is an indication of the defendant’s conscious aspiration is also realistic and possible.

Finally, the third form of act of commission exists when someone “conceals information relevant for determination of aforementioned obligations”.

In practice, this usually refers to the concealment or destruction of business books and other relevant documentation, which leads to the fact that the competent authorities cannot correctly determine the tax liability of the offender.

Legality of Income

The earlier definition of this criminal offence required that incomes to which the tax liability referred to were legal, which has been changed and removed relatively recently, and in practice left opened questions as to whether the obligation to pay tax will exist in relation to illegally acquired incomes.

However, this legislative solution made it easier to prove the existence of a criminal offense, given that the former criminal law practice has shown problematic determination of “legally acquired income”.

In this regard, one of the verdicts of the Court of Appeals in Belgrade can serve as an example of that practice, in which, among other things, it is stated “that the court would determine whether it is legally acquired income or income acquired illegally, the act of commission which is related to the legally acquired income, must be stated in the factual description of the indictment. As in the factual description of the indictment, not all the legal features of the criminal offence from Art. 229. st. 1. of the old CC, i.e. it is not stated that it is legally acquired income, as a necessary element of the criminal offence, the conclusion of the first instance court is correct that the offence for which the accused is charged with is not a criminal offence” (Judgment of the Court of Appeals in Belgrade, Kž 1 no. 1220/18 as of 22 January 2019).

However, while it is no longer necessary to prove that the income was acquired legally, in order for the crime to be committed, the intention and outreach of the new legal solution is not to, by any means, legalize or legitimize ill-gotten incomes.

Amount of Tax Liability

Besides, the consequence is prescribed as an objective element of the criminal act, and that is specifically the avoided amount of the tax obligation, which amounts were increased in relation to the previously set amounts, in order to reduce the burden of the competent authorities with petty crime.

However, it is interesting that there are official attitudes of some Appellate Courts regarding taxes paid annually that when assessing the existence of this objective element, only the total amount of evaded tax in one calendar year should be considered, which represents the fiscal or business year (Decision of the Court of Appeals in Novi Sad No. Kž. No. 1 – 2739/2011 of 15 April 2013).

Also, the Serbian Supreme Court of Cassation seconded this approach, and for the purpose of establishing whether the crime has been committed, made clear that it is necessary to determine the sum of evaded tax within one fiscal / business year.

According to this, different taxes which relate to one fiscal year may only be observed in the context of a single tax evasion crime, which excludes taxes evaded in previous years (Judgment of KZZ No. 56/2011 as of 31 August 2011).

In practice, tax control, on the other hand, observes and investigates all unpaid tax debts that are 5 year old, which matches the criminal prosecution statute of limitation for the tax evasion.

Therefore, consistent consolidation of these opposing approaches is necessary to occur to achieve much needed and overly desired legal predictability.

Direct Intent

As already mentioned, intention is an obligatory subjective element without which there is no criminal offence of tax evasion.

The offender’s act of commission is aimed exclusively at the consequence, which is tax evasion. Therefore, this crime can be committed only with the intent.

We have already mentioned that in the case of inaction, intent is more difficult to prove, but this is not excluded in the other two cases because a large number of tax payers are neither lawyers nor economists, and therefore, seek advice from people who consider themselves professionals or get information from easily accessible expert or other articles. Getting the wrong advice can be treated as a remediable mistake of law, and less often a compelling one. Remediable mistake of law is the basis for mitigation of punishment, and compelling mistake of law is the basis for exclusion of a criminal offence.

Thus, the Court of Appeals in Belgrade, acting on the appeal, considers that the intention to completely or partially avoid paying taxes must be unequivocally determined. In this regard, we quote a part of the verdict that reads: “Intention is part of intent as a subjective feature of tax evasion and must exist at the time of the act of commission, be clear and obvious. Intention as a subjective feature of a criminal offence always implies the existence of wilful negligence. Therefore, failure to file a tax return does not automatically mean that the crime of tax evasion has been committed, it will be an offence only if the intention to completely or partially avoid tax liability by concealing data or certain facts, is proven. The conclusion that the intention of not paying the disputed tax existed was not confirmed by any witness, as well as by any written document, which is not mentioned in the verdict grounds, and otherwise it is unknown on the basis of which the first instance court determined the existence of defendant’s intention. This is especially so if we keep in mind that the first instance court was also having a vexed question – whether there is a basis for paying taxes, for which an authentic interpretation by the National Assembly of the Republic of Serbia was sought, and that it is rightly to point out in the appeal that it is unclear on what basis it was then established that the defendants could have had the consciousness and will to evade paying taxes. Having in mind the defence of the defendants, who challenged the basis for payment of capital gains tax in this case, as well as the opinion of the Ministry of Finance, Tax Administration, which is stated in the Manual for the application of the Law on Corporate Income Tax, which was valid at the time of the criminal offence for which the defendants were charged with, then the reasons of the first instance court that the defendants committed the criminal offence for which they were found guilty with wilful negligence are unclear and insufficient. ” (Judgment of the Court of Appeals in Belgrade, Kž1 Po1. 5/17 as of 08. 09. 2017).

Payment of taxes after the commission of the act

Equally interesting, from legal point of view, are implications of paying tax obligation after tax evasion is committed.

Namely, what happens when the defendant files a tax return with false information or fails to file it at all, and the tax administration makes a decision determining the tax debt, and the defendant acts according to the decision and pays the debt?

It follows from the legal description of the criminal offence that for the existence of the criminal offence it is not necessary for the tax to actually be evaded, but that the offence is done by submitting a false tax return, i.e. on the day the deadline for filing the report expires, if the act of commission is inaction.

Therefore, the criminal offence exists, although the tax was not evaded, and the consequence was not realized, but the intention existed.

Certainly, the act of payment itself can be assessed in terms of mitigation of the punishment, and sometimes, the very fact that the tax was paid within the facts and circumstances of a particular case may indicate a lack of intention to evade the tax, and thus, lead to non-existence of a criminal offence.

Qualified Forms

The two qualified forms of this criminal offence are determined by the larger amounts of evaded obligation, which facts, if they have occurred, must also be covered by the intent of the offender.

Otherwise, qualified forms of offence carry more severe punishments, (a) from two to eight years and a fine if the amount of the obligation exceeds five million dinars (approx. EUR 42,370), or (b) from three to ten years and a fine if the amount of the obligation exceeds fifteen million dinars (approx. EUR 127,200).

Thus, the realization of ‘corpus delicti’ of the criminal offence of tax evasion is conditioned by one of the three alternatively prescribed acts of commission, intention and consequence.

If some of these elements are missing, there is no word on a criminal offence, but it could possibly be a misdemeanour, which we will discuss in more detail below.

Proceeding of the competent authorities

The competent bodies relevant to detection of tax fraud are the tax inspector, the tax police and the prosecutor’s office, which act in accordance with the Law on Criminal Procedure and the Law on Tax Procedure and Tax Administration.

Tax Inspector

The tax inspector performs tax control by order or invitation, during working hours (exceptionally and outside working hours), in the business premises of the tax payer, or in the offices of the Tax Administration, and exceptionally, with a court permit in the apartment of the tax payer. The tax payer is obliged to participate in the control procedure and cooperate with the tax inspector, by answering the questions asked, allowing insight into the business documentation, stock of goods and raw materials, etc.

The tax inspector shall compile a report on all facts and observations, which shall be submitted to the tax payer, who may in turn submit objections to such findings. If, after the control, the tax inspector determines that the tax payer, contrary to the law, has not determined the tax liability or has determined it incorrectly or incompletely, the Tax Administration will determine the tax by issuing a tax decision. This does not influence the fact that, if in the procedure of tax control there is a grounded suspicion that the criminal offence of tax evasion has been committed, the tax inspector will inform the tax police for further investigation in the criminal procedure.

Otherwise, the tax inspector has broad authority in the control procedure, and may impose various measures in this regard. Thus, the tax inspector may temporarily seize the goods, the means of goods transport, the business books and other relevant documentation. There is also a measure of temporary ban on performing business activities for up to one year, which can be imposed during and after the tax control procedure. The measure of banning the disposal of funds on the tax payer’s account, except for the purpose of paying the determined but unpaid tax, may also be imposed after the control has been carried out.

Tax Police

If the tax inspector finds out in the tax control procedure that the facts and circumstances indicate the existence of grounds for suspicion that tax evasion was committed, he is obliged to compile and submit a report, together with the obtained evidence, to the competent head of the Tax Administration.

In that case, the Tax Police compiles a criminal report, in which it states the evidence it learned from the tax inspector and related investigation, and submits it to the public prosecutor.

If the Tax Police, on the basis of that report, determines that the facts and circumstances stated by the tax inspector in the report do not indicate the existence of grounds for suspicion that a tax criminal offence has been committed, the Tax Police inspector shall notify the competent head of the Tax Administration.

Prosecution

At this stage, it is back and forth between the Police and Prosecution.

Namely, along with the criminal report, all other documentation, reports, statements and other materials that are relevant for the successful carrying out of the procedure are also submitted by the Tax Police to the Prosecutor’s Office.

The Public Prosecutor conducts the investigation in cooperation with the police, and in this case with the Tax Police in order to gather evidence against the suspect.

If after filing a criminal report, the Tax Police discovers new facts, evidence or traces of a crime, it is obliged to, as a supplement to the criminal report, submit it back to the Public Prosecutor.

Finally, the Public Prosecutor files an indictment if there is a reasonable suspicion that the suspect has committed the crime of tax evasion.

Defence Directions

Technically, it should first be identified on which exact act(s) of commission the charges for tax evasion are based within the indictment, and then whether the evidences adduced to prove (directly or by implication) that an accused has committed the crime have been admitted.

If so, attention should be paid to whether in a particular case it is possible to apply any of the grounds for exclusion of criminal liability (e.g. irresistible force, mental incompetence, compelling mistake of fact, compelling mistake of law), the basis for acquittal (e.g. the court may acquit the offender of a criminal offence punishable by imprisonment for up to five years, if after the commission of the criminal offence, and before he learns that it has been discovered, eliminates the consequences of the offence or compensates for the damage caused by the criminal offence), as well as some of the grounds for mitigation of the punishment (e.g. force which is not irresistible, threat, substantially diminished mental competence, but not self-induced incompetence or remediable mistake of law).

At the same time, the court may acquit the offender of a criminal offence committed through negligence, when the consequences of the offence hit the offender so hard that the imposition of a sentence in such a case would obviously not correspond to the purpose of the punishment. 

Crime vs. Misdemeanour

Tax offences incriminating tax evasion, in addition to criminal offences, can also be misdemeanours.

The same factual set can lead to the initiation of misdemeanour and criminal proceedings at the same time.

If it is determined in a specific situation that there is a criminal offence, then it usually includes (consumes) a corresponding misdemeanour. This means that an offender who would be convicted of tax evasion could not be punished for a misdemeanour committed on the same occasion, because this is a situation of apparent concurrence of criminal offences. In other words, a final verdict for a criminal offence is a procedural obstacle for the subsequent conduct of misdemeanour proceedings against the same person.

However, the reverse situation occurs more often, that during or after the end of the misdemeanour procedure, the conditions for conducting criminal proceedings are met (e.g. it is subsequently established that tax evasion in the amount of over one million dinars has been established), thus, achieving an objective element (consequence) of the offence of tax evasion. However, the parallel or subsequent initiation and conduct of misdemeanour and criminal proceedings against the same person for the same set of facts may constitute a violation of the procedural prohibition “not twice against the same” (or in Latin ‘ne bis in idem’).

Given that the decision of the misdemeanour court in the previously initiated misdemeanour procedure, as the “decided matter” (in Latin ‘res iudicata’), would exclude the possibility of subsequent criminal proceedings regarding the same life event, it is clear that the choice of the relevant procedural path for protection of the most important social values ​​depends on assessments of the acting administration, and especially the Tax Police which is authorized to submit both a request for initiating misdemeanour proceedings and a criminal report.

By Mina Radojević, Associate, and Miomir Stojković, Principal, Stojkovic Attorneys

Privacy Shield is a legal mechanism that has been used since 2016 as a basis for data transfer from the EU to the US. Controllers subject to the Serbian Law on Personal Data Protection (“LPDP”) could also use the benefits of this arrangement given the relevant provisions of the LPDP and special decisions of the Government of the Republic of Serbia.

On 16 July 2020, the European Union Court of Justice declared invalid the decision of the European Commission 2016/1250 on the EU-US Privacy Shield arrangement. This decision had significant consequences, notably regarding the entities subject to GDPR, including the entities with seat or residence in the Republic of Serbia due to its extraterritorial application. However, this court decision has wider scope as stated above.

What is Privacy Shield?

In 2016, the Privacy Shield arrangement replaced the Safe Harbour Privacy Principles, a legal document adopted by the EU and the US, which alike the Privacy Shield enabled the controllers with seat in the US to certify as safe controllers under certain terms for data originating from the EU. Based on the complaint filed by Austrian activist Maximillian Schrems to the Irish Data Protection Commission (DPC) against company Facebook Ireland Limited, dissatisfied that his data were transferred to the US and stored on servers owned by company Facebook Inc, a dispute was instituted before the Court of Justice. In 2015, this dispute resulted in invalidation of the European Commission decision on adoption of the Safe Harbour principle (Schrems I).

After that, Schrems continued his legal battle in order to prevent Facebook from processing his data in the US, considering that this, as well as many other companies, fall under the scope of application of US legislation that are very restrictive as regards privacy protection, such as e.g. Foreign Intelligence Surveillance Act (FISA).

Schrems was again successful in his fight and it resulted in invalidation of the European Commission decision on adoption of the Privacy Shield (Schrems II).

Position of the Court of Justice in case Schrems II

Basically, the court found that the extensive powers of the authorities as established by the US Surveillance regulations are in direct conflict with fundamental rights guaranteed in the EU.

The court also found that the mechanism of legal protection established by the European Commission decision 2016/1250 (Ombudsperson Mechanism) does not provide data subjects with protection before the authority that provides the guarantees equivalent to those requested by the EU law, such as independence in work and legal force of decisions that would be binding for the US intelligence services.

The court also reflected on the application of Standard Contractual Clauses (“SCCs”) (also referred to by Facebook during the proceedings), but their validity and further application was not denied. Namely, the court found that their validity was not questionable only for the fact that they were not binding upon the authorities of the state where the data were transferred, particularly considering their contractual nature and consequently the inter partes effect.

However, the court underlined that both exporter and importer of data were nevertheless obliged before data transfer to check the degree of data protection in the state where data were transferred to, and that the data importer was obliged to notify the exporter on every failure to act according to SCCs, in which case the exporter was obliged to suspend the transfer and terminate the agreement with the importer.

The court therefore clearly confirmed that it was not sufficient for the companies only to sign the SCCs, but they also had to check whether the latter could be applied in practice. This also stands for general application of SCCs and not only for transfers to the US.

There is a similar situation with the Binding Corporate Rules (“BCRs”). Namely, the court underlined that if the level of protection required under the EU law could not be ensured by application of SCCs or BCRs, it would be necessary to check whether it was possible to apply additional measures to ensure equal level of protection to that in the EU, whereas the regulations of a third country may not affect such additional measures so as to reduce their efficiency.

According to the announcements, the European Data Protection Board (EDPB) is already analysing the ruling of the Court of Justice in order to determine additional measures – legal, technical, organizational, in cases where SCCs and BCRs do not provide sufficient guarantees.

However, it should be noted that Schrems II did not set a deadline for harmonisation with the new data transfer requirements, wherefore it is necessary for all controllers who exported data to the US under the Privacy Shield arrangement to adjust as soon as possible. Although one would reasonably expect certain degree of understanding from data protection authorities, the Commissioner in Berlin already suggested the controllers to return the data stored in the US to the EU and not to transfer them further until new legislative reform has taken place.

What does this mean for controllers in the Republic of Serbia who transfer data to the US when there is no space for extraterritorial application of GDPR?

With regard to transfer of data abroad on basis of appropriate level of personal data protection, the LPDP contains legal presumption that the appropriate level of protection is ensured in countries and international organisations that are members of the Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (“Convention 108”), as well as in countries, parts of their territories, one or several sectors of activities in such countries or international organisations that ensure the appropriate level of protection according to the European Union.

The LPDP further prescribes that the list of countries, parts of their territories, one or several sectors of activities in such countries or international organisations that are deemed to ensure appropriate level of protection shall be published in the “Official Gazette of the Republic of Serbia”.

Such list was established by the Government of the Republic of Serbia by the Decision on the List of countries, parts of their territories, one or several sectors of certain activities in such countries and international organisations that are deemed to ensure appropriate level of personal data protection (Official Gazette of RS no. 55/2019, “the Decision”).

Interestingly enough, the Government does not have a clear legal power to “establish” such (positive) list since in this case the legal provision clearly specifies such scope of countries i.e. territories. In accordance with the powers from the subsequent paragraph of the same article, the Government may only specify the (negative) list of countries i.e. parts of their territories that do not ensure the appropriate level of data protection, whereas these cannot include the members of the Convention 108.

Setting aside this legal/technical omission, the Decision specifies that the list of countries that are considered by the European Union to ensure the appropriate level of protection also includes the United States, with remark: limited to the Privacy Shield framework.

Therefore, by 16 July 2020 transfer of data from Serbia to the US was allowed without Commissioner’s permission within application of Privacy Shield arrangement, which implied that the importer of data from the US was accordingly certified.

Since Privacy Shield was declared invalid, does that mean that all controllers with seat in Serbia who transferred data to the US starting from 17 July 2020 were in breach of the LPDP and subject to fines?

It will be interesting to hear the official interpretation from the Commissioner for Information of Public Importance and Personal Data Protection as regards this issue. What is certain is that the Decision will have to be amended in the near future so as to exclude the reference to the Privacy Shield. Until then, it will be necessary to hear the official position of the institutions as regards sanctions for controllers if they fail to individually stop transferring data to the US before the Decision is amended.

In relation thereto, it should be noted that neither the Privacy Shield arrangement nor the decision of the European Commission or the Court of Justice are part of the legal system of the Republic of Serbia and they are not binding for the controllers in Serbia since Serbia is not an EU member state. On the other hand, the still-valid decision of the Serbian Government explicitly referring to the application of the Privacy Shield is still binding upon these controllers.

Finally, one should not forget that the ruling Schrems II has no effect on mechanisms such as those in Article 49 of the GDPR or Article 69 of the LPDP, wherefore transfer will still be allowed in case of explicit consent of data subjects or for the purpose of enforcing agreements between data subjects and controllers, under specified terms.

This article is to be considered as exclusively informative, with no intention to provide legal advice.
If you should need additional information, please contact us directly.

By Ivana Ruzicic, Managing Partner, PR Legal

On 27 July 2020 the National Bank of Serbia (“NBS”) adopted further decisions concerning emergency measures to facilitate the position of citizens and businesses in servicing debt towards local banks and financial leasing companies in times of the prolonged Covid-19 pandemic crisis, specifically:

• Decision on temporary measures for banks with the aim to protect the stability of the financial system; and
• Decision on temporary measures for financial leasing providers with the aim to protect the stability of the financial system,

the “Decisions”.

The Decisions are essentially an extension of the initial 90-day moratorium that was introduced in March 2020, with certain matters regulated this time in more detail. The Decisions are effective from 28 July 2020.

The NBS imposed an obligation on local banks and financial leasing providers to offer a moratorium on loans (and other credit products) and leasing repayments. It is interesting that the NBS clarified this time that a moratorium applies also to certain other products of the banks, such as obligations under interest rate hedging instruments which are related to loans or credit products or obligations under bank guarantees.

The moratorium applies to all debtors – individuals, farmers, entrepreneurs and companies – and imposes a standstill period in repayment of obligations otherwise falling due as of 1 August 2020 throughout 30 September 2020. To the extent debtors have unsettled debt for the month of July 2020, those obligations can also be captured under the moratorium. This means that the debtors can defer repayments under bank loans and financial leases until the expiry of the periods when the debt from August and September 2020 (and where applicable July 2020) would otherwise fall due according to the relevant repayment plans.

Banks as well as financial leasing companies are not allowed to charge bank fees or default interest on unrepaid amounts and to initiate enforcement procedures and compulsory collections, or to take other legal actions to collect receivables from borrowers during this period. However, banks and financial leasing companies can calculate regular interest on the undue portion of debt, and exceptionally may calculate regular interest on due principal, but only if the debtor is a legal entity. Once the moratorium ends, the regular interest will proportionally be allocated to the repayment term and will not be capitalised, and the repayment term will be prolonged for the duration of the moratorium. Banks and financial leasing companies are required to prepare new repayment plans to account for the moratorium.

The NBS also imposed transparency requirements, under which banks and financial leasing companies will immediately and at latest until 30 March 2020 publish a notice on the offer of repayments delay to their clients on their websites. This publication represents, in legal terms, the giving of notice to each individual client. If the client does not reject the offer within 10 days, it will be considered to have accepted the offer.

Moratorium starts to apply to debt from August and September 2020 (and when applicable, July 2020).

As was the case previously, debtors who are still willing to make repayments may opt to keep their original repayment terms. Banks are obliged to adjust their internal acts with the said Decisions within 5 days, i.e. until 2 August 2020.

By Maja Jovancevic Setka, Partner, and Mina Sreckovic, Senior Associate, independent Attorneys at Law in cooperation with Karanovic & Partners

Companies around the globe are having to make urgent decisions to keep their employees safe and ensure business continuity in the midst of the COVID-19 outbreak. In order to fulfil these goals, companies need to find the right balance between providing a safe working environment and respecting their employees’ privacy, which can prove to be quite difficult in practice.

Aware of the gravity of the situation, employers began collecting health data related to COVID-19 from their employees and visitors quite early on, which quickly raised privacy concerns – what exactly is permitted in the present circumstances, and under which conditions?

Although Serbia has declared a state of emergency and implemented a number of measures aimed at addressing the COVID-19 concerns – including restricting freedom of movement and gatherings – no derogation from the Constitutional right to protection of personal data has yet been put in place. This means that employers are permitted to adjust their business activities and data processing practices to address the new developments, but any measure implemented to that end must be fully in line with the Serbian Data Protection Law. The Serbian Data Protection Authority has recently issued a general position on data processing during the COVID-19 outbreak, which only reiterates the need to maintain compliance with the law, but unfortunately does not provide any further details.

Since personal data related to COVID-19 is health data, which is considered sensitive under the law, its processing can be performed only if a specific set of conditions is met. Amongst these conditions, the key ones relate to ensuring:

Adequate legal grounds, which in the context of COVID-19 may include compliance with an employer’s legal obligation to ensure safety and health at work, the legitimate interests of an employer or third parties (e.g., visitors and other employees), the public interest, or even the protection of individuals’ vital interests. Processing of health data also must fall within one of the exceptions to the general rule prohibiting the processing of sensitive data, among which the public interest in public health, employer’s obligations in the field of employment, or potentially even the protection of individuals’ vital interests could be considered.   

Specific and necessary purposes, which include the need to determine whether employees and visitors are infected or have been in contact with infected people in order to provide a safe workplace for other employees. With respect to the disclosure of the identity of infected persons to other employees, this would be lawful only if it is strictly necessary for the protection of others.

The data minimization principle, which requires that employers should only collect the information strictly necessary for achieving a specific purpose. For instance, it would be proportionate to collect data such as previous contacts with supposedly infected persons and stay in high-risk areas, whether a person is symptom-free, and contacts made with others within the company. Although it may be considered reasonable, at least in certain circumstances, the prevailing interpretation of EU data protection authorities is that performing employees’ temperature measuring on-site is prohibited; and

Prior notification, which means that the employees and visitors should be properly informed of all aspects of data processing and their related rights, which can be performed either by amending existing privacy notices or (ideally) by preparing new ones specifically addressing the COVID-19 circumstances.

Depending on the specific measures implemented, companies should also consider performing a data protection impact assessment prior to collecting any personal data from individuals relating to COVID-19. This assessment is mandatory when the processing is likely to result in a high risk to individuals’ rights and freedoms, which in Serbia explicitly includes the large-scale processing of health data, but is very helpful in other cases as well to ensure compliance with key data processing principles.

It goes without saying that finding an adequate balance between the health and safety precautions in the workplace and employees’ right to privacy is quite a challenge. Although it would be unusual for the Serbian Data Protection Authority to start being overly nit-picky with enforcement during this time of crisis, it is nevertheless advisable to maintain at least certain reasonable privacy compliance standards. This is even more important for companies that intend to implement more intrusive COVID-19 measures, as these are likely to disrupt the delicate safety/privacy balance the employees and the public are used to, potentially resulting in both compliance risks and reputational damage.

The information in this document does not constitute legal advice on any particular matter and is provided for general informational purposes only.

By Goran Radosevic, Partner, and Milica Filipovic, Senior Associate, independent attorneys at law in cooperation with Karanovic & Partners

This Article was originally published in Issue 7.5 of the CEE Legal Matters Magazine. If you would like to receive a hard copy of the magazine, you can subscribe here.

On 30 July 2020, the Government of the Republic of Serbia adopted a decision on direct payments and fiscal benefits for economic entities in private sector, with a view to mitigate economic consequences of COVID-19.

What are the measures?

This package implies the payment of two 60% minimum salaries per employee, as well as delay of obligation to pay salary taxes and contributions for one month.

Implementation of measures will start immediately, so that the first RSD 18,220.00 (approx. EUR 155.00) will be paid to special COVID-19 accounts of employers by 10 August, whereas the second payment is due in September.

All micro, small and medium economic entities who received direct payment in July will be automatically registered for direct payments i.e. they will not have to re-apply.

Payment will be effected to the already opened COVID-19 accounts, whereas direct payments can be used exclusively for salaries and salary contributions of employees.

Newly established economic entities

Micro, small and medium economic entities that were established from 16 March until 20 July, inclusive, will have to apply for measures considering that they were not eligible for the first package of assistance.

They will receive a lump-sum direct payments in September in total amount of 120% of minimum salary per employee. All they have to do is to submit tax application PPP – PD by 15 September, with indicated tax and contribution maturity on 5 January 2021.

Under the same conditions, the right to direct payments can be exercised by other entities that have not applied for the first package of assistance, and which meet the requirements from the respective Regulation.

The entrepreneurs who were registered from 16 March until 20 July, inclusive, and who are not obliged to submit PPP-PD tax application according to relevant tax regulations will receive lump-sum direct payment in September, without any additional engagement.

Special purpose accounts will also be opened for these entities.

Large legal entities

Large legal entities that are thus categorised according to financial statements for 2018 will receive direct payments if they provide a list of persons that are eligible for payment of grants for June and July by 15 August.

They shall be subject to the same rules as so far i.e. they will receive 50% of minimum salary per employee who had work suspension of minimum 15 working days in the given two months.

Delay of obligation to pay taxes and contributionsLiabilities based on taxes and contributions on employees’ salary and salary compensation as well as personal salary of entrepreneurs, for the accounting period August 2020, have been postponed until January 5, 2021.The same applies to the obligations based on taxes and contributions for flat-rate entrepreneurs who used the first package of assistance, which fall due in August 2020. Flat rate entrepreneurs who did not use the first package of assistance will be able to delay their payment obligation due in September 2020.The maturity of the advance payment of taxes and contributions for entrepreneurs who used the first package of assistance, which is due for payment in August 2020, is postponed until the day of submitting the final tax return for 2020. The payment obligation for entrepreneurs who did not use the first package of assistance, which is due in September 2020, will be postponed until the same deadline.

Requirement for application of measures

Employers are obliged not to reduce the number of employees by more than 10% in the period of three months following the last direct payment i.e. by the end of 2020.

Deadline for using the funds

Economic entities will be obliged to use the received payments by 31 October this year. After the expiry of this deadline, special purpose accounts will be closed and the unused funds returned to the budget.

What to do if you do not wish to use additional funds?

If economic entities do not wish to use these funds i.e. they cannot meet the obligations arising from such payments, they need to leave the funds on special purpose accounts and after expiration of deadline for using the funds they will be withdrawn from the accounts and returned to the budget.

This article is to be considered as exclusively informative, with no intention to provide legal advice.
If you should need additional information, please contact us directly.

By Ivana Ruzicic, Partner, and Natalija Dukic, Associate, PR Legal

On 16 July 2020, Court of Justice of the European Union (“CJEU”) has rendered a landmark decision declaring the Decision 2016/1250 of the European Commission on the adequacy of the protection provided by the EU-US Data Protection Shield (“Privacy Shield Framework”) invalid with the immediate effect. This decision has caused a major shift in the way in which personal data may be transferred to the United States of America. However, the scope of the decision is far broader and includes far more restrictions than it may appear at first glance.

CJEU Ruling – Data transfer to the US becomes increasingly more difficult

The validity of the Privacy Shield Framework was first brought into question in 2015 by the Austrian activist and lawyer Maximillian Schrems (who won the petition to bring down the Safe Harbor mechanism of personal data transfer to the US just a few years prior, now known as the Schrems I). Mr. Schrems claimed that the US-based companies cannot provide an adequate level of personal data protection due to the laws which enable the US National Security Agency (“NSA”) to access data of foreign persons, regardless of the guarantees provided in the Privacy Shield Framework. His petition was not solely directed at the Privacy Shield Framework, but it also questioned the validity of the Standard Contractual Clauses (“SCC’s”), another commonly used mechanism to secure the lawful transfer of personal data to non-EU countries.

CJEU ruled, after long deliberation, that the Privacy Shield Framework does not provide an adequate level of protection in accordance with General Data Protection Regulation (EU) 2016/679 (“GDPR”). Consequentially, the Privacy Shield Framework may not be used as a basis for the transfer of personal data to the US with immediate effect. This is a significant finding as there will be no “grace period” for compliance with the court’s decision, as was confirmed by Data Protection Authorities across the EU in publicly available statements.

SCC’s, however, remain valid and may be used as a lawful basis for personal data transfers on the condition that the data exporter examines and confirms that the data importer can provide adequate levels of protection with regard to the laws of the importing country. Such a standard places an exorbitant burden on the companies from the EU who perform or wish to perform any kind of personal data transfer to any third country, not just the US in particular. Many countries practice wide-scale surveillance of both foreigners and their citizens alike, with the Russian Federation and the Peoples Republic of China first coming to mind. These countries have laws that contain mandatory provisions which cannot be derogated by SCC’s, which are contractual in nature. The European Data Protection Board is still considering what mechanisms will be put in place to ensure adequate levels of protection in these cases.

There is one problem in particular concerning the transfer of personal data to the US when it comes to the use of SCC’s, that went almost unnoticed. Almost all of the data transferred from the EU to the US is transferred via a network of undersea cables – the backbone of the global internet. The US Foreign Intelligence Surveillance Act provides the NSA with a broad range of authorities when it comes to accessing data of foreign persons located abroad. This allows the NSA to gain access to the aforementioned network of undersea cables upon entry into the US. Having mentioned in mind, it will be extremely difficult to assess whether the appropriate safeguards will be provided in the described set of circumstances.

Alternative ways of lawful transfer such as Binding Corporate Rules should be considered, but it remains to be seen how will this decision of the CJEU effect such forms of personal data transfer. Data Protection Authorities across the EU have yet to issue substantive statements on the matter.

Notwithstanding the abovementioned, necessary data transfers are still permitted under the rules of GDPR. For example, necessary data for the performance of the contract, or transfers conducted on the basis of explicit consent of the data subject are still permissible. CJEU’s decision did not prohibit all data transfers abroad, but it did introduce serious restrictions to the free flow of data in the interest of preserving the privacy rights of EU citizens.

Effects on the Republic of Serbia 

Serbian Personal Data Protection Act is modeled after GDPR and contains a provision that explicitly prescribes that the adequate level of personal data protection is provided in jurisdictions as determined by the adequacy decision of the EU.
Numerous Serbian companies, especially those in the IT sector are transferring data to the United States, whether to their affiliated companies or outsourcing companies. Some of these companies have thus far relied upon the Privacy Shield Framework and will now be forced to either reevaluate the risks and introduce additional security measures where need be (still unclear which measures would provide adequate levels of protection) or revert to transferring of personal data to 8 jurisdictions which are still considered to provide adequate levels of protection such as New Zealand, Israel, Japan, Canada, etc.
It would be reasonable to assume that the competent authorities in Serbia will monitor developments in the EU and act accordingly.
Be that as it may, the European Data Protection Board and the US Secretary of Commerce are already working on a new framework agreement that would improve upon security measures that rendered the Privacy Shield Framework inadequate and provide a new basis for a free flow of data across the Atlantic. Until the adoption of “Privacy Shield 2.0”, companies are left with no choice but to reassess their options, amend the existing data protection agreements where possible and proceed with cross border data transfers only after they have determined that the adequate levels of protection are provided.

This text is for informational purposes only and should not be considered legal advice. Should you require any additional information, feel free to contact us.

By Katarina Zivkovic, Senior Associate, and Dragan Martin, Associate, Samardzic, Oreski & Grbovic

Jankovic Popovic Mitic has advised French multinational company C.D Holding Internationale SAS on its EUR 5 million acquisition of an additional stake in Emergo Sport d.o.o., the Serbian subsidiary of Fitpass Limited. Fitpass was advised by Bojovic, Draskovic, Popovic, and Partners. 

Emergo Sport provides services to corporate entities and retail individuals of issuance, sale, and operation of a multi-gym/sport activities membership card, enabling access to sports facilities in Serbia. 

C.D Holding Internationale’s acquisition of a stake in Emergo Spot was its second, following its initial acquisition last year (as reported by CEE Legal Matters on August 16, 2019). As a result of the recent deal, C.D Holding Internationale SAS currently holds 49% ownership over the company.

JPM’s team included Partner Nikola Poznanovic and Senior Associate Anja Sakan.

BD2P’s team consisted of Partner Vuk Draskovic and Senior Associate Milica Pesteric.

Doklestic Repic & Gajin has launched a French Desk, led by Partner Marija Papic.

Papic studied at the Faculty of Law at University of Belgrade and Faculty of Law Pantheon-Assas in Paris. Prior to joining Doklestic Repic & Gajin, she spent six months at Dentons, two and a half years at Gecic Law, and two years at Newell Brands.

According to Doklestic Repic & Gajin, “Papic is a French-trained and dual-qualified multilingual French and Serbian lawyer who worked in some of the biggest international law firms, organizations and multinational companies in Strasbourg, Paris and Luxembourg. Together with her team, Marija looks forward to providing assistance to French-speaking clients in need of legal assistance in Serbia and the rest of the Adriatic region.”

Frankly, this question has to be determined by the acting court as and when it arises with reference to particular facts and circumstances of each individual case.

Yet, the tax rules, after laying down what is considered as annual personal income tax, do not prescribe in respect of establishing liability which evidence should be taken into account and believed, and if taken/believed, what weight should be attached to it or what effect should be given to it.

So, deciding on liability and punishment have been left at the sound discretion of the acting court to be exercised on consideration of all facts/circumstances. 

Therefore, the defence strategy may mean for the defendant the difference between harsh fines, or even incarceration, and avoiding the payment of fines, less stringent penalties (community service), and freedom.

Who owes and what is Annual Personal Income Tax?

The Annual Personal Income Tax is paid by natural persons who earned more than three times the average annual salary per employee paid in the Republic of Serbia in the year for which the tax is determined, according to the data of the republic authority responsible for statistics (taxable income).

This tax is paid by residents, for income earned in the territory of the Republic of Serbia and abroad, and by non-residents, for income earned solely in the territory of the Republic of Serbia. 

What is income?

The Law on Personal Income Tax of the Republic of Serbia defines income quite extensively.

Namely, income is considered to be the annual sum of:

1. salary and other income of the employee arising from employment;
2. taxable income from self-employment;
3. taxable income from copyright and related rights and industrial property rights;
4. taxable income from real estate;
5. taxable income from leasing movable property 
6. taxable income of athletes and sports experts;
7. taxable income from the provision of catering services;
8. other taxable income, which includes the following income:
   1. income arising from deed contracts;
   2. income arising from contracts on performing temporary and occasional works, concluded through a youth or student cooperative with a person up to 26 years of age, if he / she is studying in secondary, higher or high education institutions;
   3. income from additional work;
   4. income from trade representation;
   5. income of members of the companies’ management bodies;
   6. compensation to deputies;
   7. compensation in connection with the performance of defence, civil protection and protection against natural disasters;
   8. income of bankruptcy trustees, court experts, court jurors and court interpreters;
   9. revenues from the collection and sale of secondary raw materials;
   10. income from the sale of goods produced by performing temporary or occasional works, if they are not taxed on another legal ground;
   11. awards and other similar benefits to natural persons who are not employed by the payer, which arise from work or other types of contributions to the payer’s activity, in the amount of over RSD 13,248 (Serbian dinars) per year, realized by one payer;
   12. income from Article 9 of the Law on Personal Income Tax above the prescribed non-taxable amounts (various considerations which are subject to exclusion from taxable income);
   13. reimbursement of expenses to persons who are not employed by the payer, except for the income listed in item 11) in this list;
   14. income earned by the employee on the basis of participation in the employer’s profit realized in the business year;
   15. income from the sale of agricultural and forest products and services, including income from the collection and sale of forest fruits and medicinal herbs, as well as the cultivation and sale of mushrooms, bee swarms (bees) and snails;
   16. all other income that is not taxed on another legal ground, or is not exempt from taxation or from tax payment;
   17. compensation paid to an entrepreneur or to a “lump – sum” entrepreneur, who performs activities for a fee, for the same principal or for a person who is considered a related party to the principal, and who additionally meets at least five of the nine criteria, defined in the Article 85, paragraph 1, item 17 of the Law on Personal Income Tax, or it could have been concluded when starting a business cooperation that the entrepreneur will meet at least five of the nine criteria, according to the circumstances of the case, and the criteria were subsequently met (so called “independence test”);
9. the above enumerated income generated and taxed in another country for residents – taxpayers.

When Tax Return must be submitted?

A citizen who earned the aforementioned taxable income in the previous year is obliged to submit a tax return with accurate data to the competent tax authority after the end of that year, and no later than May 15 of the following year.

How is the law broken? 

The law is violated, and an individual is exposed to penalties, if by the aforesaid timeline a tax return is not filed at all, or it is not filed within the legal or additional deadline, or if it is submitted unsigned, or with incorrect information that are not rectified within the prescribed deadline, or it is filed without the necessary documentation and evidence of importance for determining the existence and amount of due tax. 

And for this violation, pecuniary fine may range from RSD 5,000 to RSD 150,000. 

If a conviction is rendered against the defendant, declaring him responsible for this misdemeanour with the imposition of a fine, the verdict also determines the deadline for payment of the fine, which cannot be longer than 15 days from the day the verdict becomes final. 

Conversion of non-paid fine into jail time 

Non-payment of fine which is ruled by the court verdict (in whole or in part) may be replaced by and result in imprisonment. 

And, one day of imprisonment may be ordered for every RSD 1,000 (less then EUR 10) of the imposed fine, provided that the imprisonment sentence may not be shorter than one day or longer than sixty days. 

Conversion of non-paid fine into community service 

If the court finds justified, given the gravity of the offense, the amount of unpaid fine and the property of the convict, the court may, instead of imprisonment, order for the unpaid fine to be replaced by public service.

Eight hours of the service replace one day of imprisonment or 1,000 dinars of imposed fine.

The service cannot last longer than 360 hours.

The part of the unpaid fine that could not be replaced by imprisonment or public service is collected by enforcement. 

And if fine is paid after the conversion is ordered…

If, after the court decision on the replacement of the unpaid fine, the fined natural person nevertheless pays the fine, the imprisonment or public service punishment will not be executed.

But, if the execution of the imprisonment / public service sentence has begun, and the convicted person pays the rest of the imposed fine post festum, the execution of the imprisonment / public service shall be suspended.

Given the amount of the threatened fine and the consequences in case of its non-payment within the deadline for its voluntary execution, the defence in the misdemeanour procedure should be approached seriously and zealously.

How to defend?

In short, the misdemeanour procedure begins with a request to initiate a misdemeanour procedure, which is submitted to the Misdemeanour Court by the competent Tax Administration.

Prior to this act, the Tax Administration has conducted the tax control procedure and determined that there is a grounded suspicion that the natural person – taxpayer committed a misdemeanour prescribed by the Law on Tax Procedure and Tax Administration.

Then, the Misdemeanour Court serves the defendant a subpoena to invite him for an official court hearing.

The defendant may defend himself alone or with the assistance of a defence attorney, who is authorized to attend the hearing of the defendant, but not to testify instead of the defendant.

In the event that the defendant is justifiably prevented from responding to the summons of the court for a hearing on the day determined by the court in the subpoena, he is obliged to justify his absence from the hearing.

Otherwise, the court may issue a warrant to apprehend the defendant and bring her/him before the court, which is the next measure in line to ensuring the defendant’s presence in the proceedings. 

And the most appropriate defence is…

The most beneficial and, from the aspect of the defendant, the most convenient way of presenting the defence in this type of misdemeanour proceedings, is preparing and submitting a written defence.

The written defence can be prepared for the defendant by his defence attorney, but in that case both the defence attorney and the defendant are obliged to sign it (regardless of the fact that the defendant has authorized an attorney at law to represent him in this court procedure).

In this instance, one should primarily observe whether the court in the specific case allowed the defendant to present his defence in writing, or the defendant still has to appear in court in person for the hearing.

The court will instruct the defendant with regards to the possibility of presenting his defence in writing in the subpoena for a hearing, if the court finds that a direct oral hearing is not necessary, given the significance of the misdemeanour and the information at the court’s disposal.

The defence strategy, in general, should primarily focus on whether the defendant has committed the offense she/he is charged with, and whether in the specific case the earned income is exempt from taxation (for instance, the list of types of incomes which are exempted from taxation is given in Article 9. Law on Personal Income Tax).

And, if the defendant has committed the stated misdemeanour, it should be precisely determined which act of execution is in question (primarily, whether the defendant had filed a tax return, but it was not complete, or certain data inscribed in the return were not accurate, or it was submitted after the due date, or, on the other hand, the defendant did not file a tax return at all).

Furthermore, legal grounds for mitigation of punishment must be thoroughly explored, especially (substantially reduced mental competence, with the exception of insanity which the defendant caused by alcohol/substance use or otherwise – actiones liberae in causa, or non-reasonable mistake of law), or a legal basis for exclusion of misdemeanour liability (insanity, reasonable mistake of law and reasonable mistake of facts).

So, in case of reasonable ignorance of the regulation (mistake in law), which may exclude liability, it is required that the misdemeanour offender was not obliged to have known and could not have known that her/his act is prohibited. 

On the other hand, reasonable mistake of facts exists when the offender, at the time of committing a misdemeanour, wrongfully deemed that there were circumstances under which, had they really existed, his/her act would have been permitted.

Release from Punishment  

Additionally, the defence should determine whether a legal basis for release from punishment exists in the particular case. 

This legal ground would exist if the defendant remedied the consequences of his act or compensated for the damages caused by the misdemeanour before learning that misdemeanour proceedings were initiated against him.

Additionally, the court can acquit the perpetrator of a misdemeanour committed out of negligence, when the consequences of the act affect the perpetrator so harshly, that the imposition of a sentence in such a case would obviously not correspond to the purpose of the punishment.

Finally, the defence should inspect and highlight all mitigating circumstances that exist in a particular case, among which for instance, statute of limitation, the defendant’s fair behaviour and just conduct in the proceedings (responding to a summons, overall participation in the proceedings), the defendant’s previous non-convictions, the defendant’s personal and family circumstances or material situation, the fact that the offense did not cause serious consequences or great damage, and all other circumstances that indicate that the imposition of a fine would be unfair, since the defendant’s conduct is not requiring a misdemeanour punishment, and the purpose of sanctioning would be achieved by imposing an admonition alone.

Caution with Reference to Future Conduct  

In practice, if the tax return is filed after the expiration of the legal deadline, the defendants are generally reprimanded/admonished, since the Law on Misdemeanours prescribes that an admonition may be issued if the misdemeanour is reflected in non-compliance or damage caused by the misdemeanour, but the perpetrator fulfilled the prescribed obligation, i.e. removed or compensated the caused damage after initiating the procedure, but before passing the verdict. 

So, instead of a fine for a misdemeanour, an admonition may be imposed if there are circumstances that to a considerable degree mitigate the liability of an offender, so that it can be expected that he/she shall avoid committing misdemeanours in future even without imposing a punishment.

By Ivana Cvetkovic Diafa, Senior Associate, and Miomir Stojkovic, Principal, Stojkovic Attorneys

NKO Partners has advised CTP on financing of EUR 13.5 million from the EBRD for real estate project development in Serbia. CMS advised the EBRD on the transaction.

NKO Partners’ team was led by Senior Associate Marina Nikolic.

Editor’s note: After this article was published, CEE Legal Matters learned that CMS’s team included, in Serbia, Partner Milica Popovic and Lawyer Ksenija Boreta, and in Sofia, Partner Elitsa Ivanova and Associate Katerina Hristova. More information about CMS’s involvement in the deal can be found here.