Category: Serbia

The Law on Central Register of Mandatory Social Insurance (“ZOCROSO”) was amended at the end of 2019 and the most important novelty was the extension of deadline for employers to adjust to the Decision on single codebook for entry and codification of information in databases in the field of labour, enacted in 2018 (“the Decision“).

Namely, employers i.e. applicants of single application shall be obliged, by 1 January 2021, to update the previously entered information in the single database CROSO, as regards the following:

• Occupation, according to classification of occupations, which is required for employment in certain jobs and/or positions;
• Type and level of qualification e. education that are required for employment in certain jobs and/or positions;
• Type and level of qualifications e. education held by a (employed/self-employed) person.

Adjustment of entered information needs to be done in accordance with the occupation codes and qualification levels established by the Decision.

This obligation applies to those employers who have entered data in the CROSO database in accordance with the old code system.

In relation to the above, it is noteworthy that the Government of the Republic of Serbia has recently adopted the Decision amending the Decision that will start to apply from 25 August 2020 and contains the new single codebook.

Novelties in the single codebook

Adoption of the Decision in 2018 was a great novelty because it ended the practice of classification of education levels according to the degrees of professional practice, which was a result of adoption of the Law on National Framework of Qualifications of the Republic of Serbia (“NOKS“). Previous codebooks became obsolete due to the changes in the labour market and education system, hence it was necessary to adopt regulations so as to adjust occupations and levels and types of qualifications.

The changes, however, are not just terminological. For example, according to the system valid until 2018, the level of education VII – 1 (university education) corresponds to the level 6.2 of the NOKS, which is acquired by completing main academic studies with 240 ECTS.

The Decision amending the Decision contains the new Codebook of occupations, Codebook of levels and types of qualifications, Codebook of states and territories, Codebook of municipalities in the Republic of Serbia and Codebook of populated places in the Republic of Serbia.

Penalties for non-respecting the deadline

If employers fail to update the information in the CROSO system by 1 January 2021, they shall be subject to fines for offence, namely:

• For employer – legal entity, fine shall range from RSD 300,000.00 to 1,500,000.00;
• For employer – entrepreneur, fine shall range from RSD 10,000.00 to 500,000.00;
• For employer – natural person, fine shall range from RSD 5,000.00 to 150,000.00.

Although it may seem there is a lot of time until the expiry of deadline for updating the information, it should be noted that the establishment of occupation equivalents, types and levels of qualifications can be rather extensive, particularly for employers with a large number of employees.

In relation thereto, the Ministry for Labour, Employment, Veteran and Social Affairs prepared a Manual for application of single codebook for entry and codification of information in databases in the field of labour (it should be noted that the manual has not yet been harmonised with the amendments of the Decision from July 2020, but it can be used as general guideline for applying the codebooks).

Also, in case of dilemma during selection of occupation code, NSZ provides assistance upon request that users can submit to e-mail sifarnici@nsz.gov.rs (the enquiry needs to specify employer’s business activity and the description of activities within a particular job).

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

In January 2020, the Serbian Commission for Protection of Competition (“Commission”) initiated investigations against Imlek and Apatinska Pivara which are two leading national dairy and beer producers, and against a number of retailers, including Metro Cash & Carry and Veropoulos, for allegedly employing resale price maintenance (“RPM”) agreements to restrict intra-brand competition.

Namely, during a sector inquiry into the retail sale in non-specialized stores with food, beverages and tobacco the Commission uncovered distribution contracts with suspected RPM terms triggering several antitrust investigations against the undertakings involved.

Before it passes final decisions, the Commission is expected to come up with its final findings based on evidences collected in the meantime.

That said, it is never redundant to shed more light on the concept of RPM, to briefly comment on legal context surrounding the cases, and contrast them with previous ones.

Indeed, this is not a first crackdown on RPM by the Commission.

On 1 December 2017, the Commission punished N Sport and 15 other wholesale and retail distributors of sports clothing, accessories, and footwear with total of €381.000,00 in fines for entering into agreements with straightforward RPM clauses.

In September 2018, Auto Čačak, an exclusive distributor of Škoda in Serbia, and its network of authorised dealers and repairers suffered total of €183.500,00 in fines in respect of contract schemes fixing maximum discounts to limit intra-brand competition when participating in public procurement for original spare parts and maintenance service aftermarkets.

Following a dawn raid in April 2018, the Commission stormed business premises of Yuglob and Keprom, triggering sweeping investigations against major wholesale distributors of baby care products and 172 retailers for alleged setting of minimum retail prices for baby products (cases are still pending before the Commission).

What is intra-brand competition?

Intra-brand competition concerns distributors’ competition on the basis of the brand product of the same supplier.

What is RPM?

RPM is an agreement between a producer/supplier and a distributor whereby they agree to fix resale prices or set minimum resale price levels to be observed by the later with an object to restrict intra-brand price competition.

Therefore, if a distributor’s freedom to set resale prices is limited by means of an agreement with supplier that is considered as reduction of  intra-brand competition caught by antitrust rules.   

The agreement may come in any form, as a clear-cut contract clause, or as a result of explicit or tacit acceptance by the distributor of the supplier’s price policy expressed, for example, through a mere exchange of emails, or by way of an omission of the distributor to explicitly disapprove the proposed price strategy restricting its freedom to set its prices independently from a supplier.

Indeed, the RPM may be reached indirectly in the form of setting distribution margins, fixing maximum discounts to a prescribed price levels, by pairing rebates with a duty to observe given resale price levels, etc.

To be sure, resale prices recommended by a supplier is a tantamount of the RPM if coupled with “supportive” measures (warnings, threats, penalties, economic incentives) forcing the distributor to effectively collaborate in the implementation of apparently uncompelled pricing strategy or otherwise reducing distributor’s economic incentives to cut price.

Is RPM illegal?

Agreements which have as their object or effect the prevention, restriction or distortion of the competition are, in principle, prohibited, except if excused from the prohibition under proper legal avenues.

Namely, Article 10 of the Competition Protection Act prohibits all forms of agreements, or concerted practices established between independent undertakings which directly or indirectly fix purchase or selling prices or any other trading conditions.

Certainly, the Commission qualifies RPM as a form of a hard core restriction of market prohibited under the Serbian antitrust rules.

Indeed, the Regulation on the Block-Exemption of Vertical Restraints excludes any form of RPM from a benefit of the exemption from the prohibition of Article 10.

The RPM is presumed illegal even if practiced between a supplier and a distributor with relatively weak market power (less than 15% market share, respectively).

As a result, agreement with a RPM term executed before an individual clearance by the Commission is obtained would most certainly qualify as a per se infringement of the Competition Protection Act.

While indeed, companies may seek individual exemption of a RPM contract against claimed efficiencies, given the rigid stance of the law against any form of price fixing, chances of individual clearance of the RPM clause by the Commission are exceptionally limited.  

Nevertheless, to avoid any prosecution, undertakings that feel that RPM is indispensable for implementing an effective and sustainable distribution model (to protect investments in promotion to launch a new product or brand in the market, to promote additional pre-sales services, to organize and protect uniform franchise distribution model, etc.) must seek individual clearance by the Commission before executing the distribution contract with the RPM term.

Maximum resale prices (MRPs) and recommended resale prices (RRPs) are generally not illegal

Yet, they are not completely devoid of regulatory risks either.

In principle, it is not illegal for a supplier to place MRPs or RRPs for its products as long as they do not disguise a mandatory resale price.

In particular, there is a risk of finding indirect RPM if MRPs and RRPs are pooled with rebates, ban on promotional discounts, or effectively enforced through varying forms of pressure, that is when producers keep themselves well-informed about the resale prices and/or intervenes when the resale price is too low often with success.

The Commission may, in particular, suspect the existence of disguised RPM in case there is uniformity of prices actually charged.

Indeed, the risk of investigation is higher if RRPs and MRPs are employed by a supplier which has a significant market power.

What is required for the Commission to establish the infringement by the RPM?

The RPM agreements are considered restrictions of competition by object, meaning that the Commission is not required to establish anticompetitive effect in order to prove infringement of the Competition Act.

In addition, the defence that the RPM clause was not effectively implemented by contract parties is not an exculpating fact, though it may reduce the size of penalties.

That said, the existence of the RPM agreement still must be proven.

Namely, the Commission must establish existence of restrictive pricing policy of the supplier and expression of an acquiescence of a buyer to the supplier’s restrictive plan in any form to the requisite standard of proof.

Where RPM is intercepted in formal, unambiguous and straightforward contract term this would be a clear-cut case.

On the other hand, ambiguous contract terms or unsolicited calls from a supplier to distributors to align prices, though suspicious, may still require from the Commission to access the precise purpose of the contract terms in their actual legal and economic context and/or adduce additional evidence establishing, unequivocally, acceptance by the distributor of the unilateral pricing policy of the supplier.

Penalties for RPM in Serbia

The contract containing RPM term renders entire contract illegal and unenforceable and the Commission can impose fines to a maximum of 10% annual turnover calculated at the level of a corporate group.

RPM is qualified as the most severe restriction of competition under the Commission’s guidelines on setting fines in antitrust cases.

So far the Commission have been penalizing suppliers (usually an initiator of RPM) and distributors alike, even though the later are typically weaker parties to the agreement.

Should Imlek and Apatinska Pivara be worried?

These antitrust cases share a common feat, concerning similar contract practice requiring buyers to refrain from in-store pricing practices considered unfair and exorbitant with distorting effect to the suppliers’ goodwill and to fair competition. 

According to its statements, the Commission appears confident at having a definite case against Imlek and Apatinska Pivara. 

The Commission asserts that contract terms provided by producers prohibiting distributors from engaging in retail price practices that would tarnish suppliers’ goodwill and/or reputation of their products by means of the exorbitant and excessive price undercutting, including, by reselling products bellow the purchasing price are equivalent to direct RPM.

Furthermore, the Commission stresses that the alleged RPM terms were reinforced by the suppliers’ right to withdraw rebates and/or avoid distribution contract in case buyers fail to observe the clause protecting reputation of suppliers.

In the Commission’s view, by accepting these contract terms, the distributors, agreed explicitly, not to resell products bellow the purchasing price with an object to restrict the intra-brand competition.

The suspected clauses were not unconditional, however.

Namely, right to cancel rebates and/or to avoid agreement due to reselling below the purchasing price was subject to cumulative pre-conditions that a supplier establishes existence of long-term exorbitant in-store pricing practice, which is a direct consequence of an exercise of the buyer’s market power with an effect of eliminating actual competitors or preventing new market entries.

In other words, the parties’ “agreement” is that the supplier may cancel rebates due to reselling bellow the cost of purchase only in case it establishes that the buyer holds and abuses dominant market position by employing exorbitant pricing.

Besides, the Serbian Trade Act, condemns exorbitant pricing practices as a form of an unfair commercial practice, though, unlike the contract terms, it does not specify if reselling products bellow the purchase price fits in the legal definition.

That said, reselling below the purchasing price, if part of the strategy to drive away competitors, or to discredit the image of another product or establishment, is, indeed, a conduct condemned in some EU Member States’ legislation as an unfair commercial practice.

While the relevance of the Trade Act and comparative law to the cases may be disputed, the fact remains that the Commission must establish that the suspected contract terms “constitute[] the faithful expression of the parties’ intention (emphasis added)” to conduct themselves on the market in a specific way which is restrictive.

Indeed, not so straightforward RPM case.

Comment

RPM terms are considered hard-core competition restriction.

If discovered, the Commission is not required to supply evidence on potential or actual anti-competitive effects, hence, making RPM cases notoriously easy to prove.

It takes two to tango, however.

Indeed, as a first step, the Commission must establish unequivocally that the suspected terms of uncovered contracts constitute the faithful expression of the joint intent of suppliers and buyers to implement RPM as a common plan.

This is especially important since contested contract terms provide the non-dominant buyer with enough power to disapprove any supplier’s attempt to control its pricing policy, that is to resist its invitation to dance.

Certainly, deleterious effects on competition of less than straightforward RPM terms, in our view, may not be presumed without thorough assessment of actual legal and economic context of application of suspected clause, and if needed, without production of sufficient evidence to support RPM hypothesis. 

One may wonder if reading into the text of suspected contract terms more than actually stipulated is sufficient to establish buyer’s acquiescence to alleged supplier’s resale price plan, absent any additional evidence to support existence of collusion more convincingly.

That said, coupling economic incentives to a particular expectation regarding distributors’ resale pricing policy, must be always resisted, not least, because enforcement actions involve intrusive investigations, which are costly, draining and attract bad publicity.

Given the risks, the safest policy is to avoid drafting any term in contracts that the market regulator may associate with RPM, however innocuous or legitimate it may appear to parties to the contract.

By Zoran Sretic, Legal Counsel, Stojkovic Attorneys

PR Legal has successfully defended the interests of coffee producer and manufacturer Strauss Adriatic in a dispute over the alleged infringement of the “C Kafa” trademark.

According to PR Legal, “this judgment passed following litigation that was run for several years against a local coffee manufacturer for imitating the ‘C Kafa’ trademark, which is well-known in Serbia and in neighboring countries as a symbol of high reputation. Besides establishing the trademark infringement, the judgment also prohibited the performance of the illicit activity in the future and sustained other requests in terms of destroying confiscated goods at the cost of the defendant, publication of the judgment in daily press and compensation of procedural costs.”

In addition, PR Legal reports, “another legal curiosity is that the Commercial Court of Appeal also sustained a special request of the plaintiff for payment of license compensation instead of damage compensation, which can be awarded in cases of intended trademark infringement, and ordered the defendant to pay approximately EUR 45,000.

PR Legal’s team was led by Partner Milan Petrovic.

The Law on fees for the use of public goods (“the Law“) prescribes an obligation for legal entities and entrepreneurs that are deemed to have negative environmental impact to pay the fees for protection and improvement of the environment (“Eco-fee“).

Payers

The law prescribes the following fee payers:

• Legal entities and entrepreneurs performing certain activities with impact on the environment i.e. natural person making impact on the environment.
• Owners of freight vehicles and/or persons carrying out transport of oil and oil derivatives, raw materials, products and semi-products of chemical and other hazardous substances from industry or for industry in the territory of local self-government unit with the status of endangered environment on the territory of relevance for the Republic of Serbia.

Criteria for establishing the activities with environmental impact

The Regulation on criteria for the establishment of activities with environmental impact according to the degree of negative environmental impact caused by the performance of activities, the amount of fees (“the Regulation“) that entered into force on 7 December 2019, stipulates more detailed criteria for the establishment of activities with environmental impact and the amounts of fees for protection and improvement of the environment.

These criteria are established within prevailing activity of the fee payer, whereas prevailing activity shall mean:

• The activity registered with the Business Registers Agency;
• The activity through which the legal entity and/or entrepreneur realised most profit in the year preceding the year for which the fee for protection and improvement of the environment is being established.

The list of activities according to the degree of environmental impact – small, medium and large, is prescribed in appendix to the Regulation, while the amounts of fees are defined according to the degree of impact and the size of legal entity/entrepreneur.

For example, a medium legal entity whose activity has medium negative impact, shall be obliged to pay eco-fee in the amount of RSD 250,000.00 annually.

Deadline for applications

Article 138 of the Law prescribes that legal entities and entrepreneurs that are eco-fee payers shall be obliged by 31 July to file an application with information of relevance for the establishment of fee to local self-government unit in charge of the establishment, control and collection of public revenues.

The application shall also be submitted in case of change of information relevant for the establishment of fee, within 15 days after the change has occurred.

Application form is prescribed by the Rulebook on form, content and manner of submitting the application with information of relevance for the establishment of fee that the payer of fee for protection and improvement of the environment is obliged to submit to a local self-government unit, as well as application that the payer of fee for protection and improvement of the environment is obliged to submit to relevant local self-government unit and/or city administration monthly for taking over/delivering goods during a month.

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 Jovana Milic, Senior Associate, and Natalija Dukic, Associate, PR Legal

The Rulebook on preventive measures for safe and healthy work to prevent the occurrence and spread of an epidemic of infectious diseases (the “Rulebook”) was adopted on 29 June 2020. The Rulebook closely regulates preventive measures that employers are obliged to apply in order to prevent the occurrence and spread of infectious diseases and eliminate the risks for safe and healthy work of employees, as well as persons found in the work environment, when the competent authority declares an epidemic of infectious diseases.

The Rulebook came into force this weekend, on 11 July 2020, and applies to all workplaces in the work environment in which the work is performed, except for field work and work from home.

The Rulebook inter alia stipulates that employers are obliged to adopt a Plan of Implementation of Measures for Preventing the Occurrence and Spread of an Infectious Disease Epidemic (“Plan“) by 10 August 2020 the latest, which will represent an integral part of the risk assessment act in terms of law regulating safety and health at work. The Rulebook stipulates mandatory elements of the Plan, gives an important role to the person in charge of safety and health at work and envisages certain obligations for employees in order to implement the additional necessary measures for safety and health at work.

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

By Milena Jaksic Papac, Partner, and Milijana Tomic, Associate, independent Attorneys at Law in cooperation with Karanovic & Partners

On July 11, 2020. the new Rulebook on preventive measures for health and safety at work in order to prevent the occurrence and spread of an infectious disease epidemic entered into force.

The Rulebook of the Ministry of Labor on preventive measures for health and safety at work in order to prevent the occurrence and spread of an infectious disease epidemic was published in the “Official Gazette of RS”, no. 94/2020 on July 3, 2020, and entered into force on July 11, 2020 (hereinafter: the Rulebook).

This Rulebook applies to all workplaces and work environments in which work is performed, except for field work and work from home.

In accordance with the Rulebook, the employer is obliged to adopt a plan for the implementation of measures, aimed at prevention of the occurrence and spread of an infectious disease epidemic, applicable to all work positions in the employer’s work environment (hereinafter: the Plan). This Plan is an integral part of the risk assessment act, which is adopted in accordance with the law and regulations in the field of safety and health at work. The Plan determines measures and activities that increase and improve the employees’ safety and health in order to prevent the outbreak of infectious disease, as well as measures and activities taken in case of the infectious disease outbreaks. At the same time, the Plan regulates the obligations and responsibilities related to the monitoring and control of the health and safety measures at work implementation, for which the person in charge of health and safety at work is in charge.

Duties of the employer in accordance with the provisions of the Rulebook:

A) Measures that are to be taken in order to prevent the occurrence of an infectious disease:

The employer is obliged to ensure the application of preventive measures at every workplace in the work environment, and in particular the following measures:

1) before the beginning of work, to provide written instructions and directions on measures and procedures for the prevention of the infectious disease outbreak, which contain information on the infectious disease symptoms;

2) in accordance with the possibilities, if work in shifts is not organized, to redistribute working hours by introducing the second or third shift with a smaller number of employees;

3) to conduct enhanced hygiene and disinfection of work and auxiliary rooms, which includes regular disinfection of rooms and frequent ventilation of the work space;

4) to provide employees with sufficient amounts of soap, towels, running water and alcohol-based hand sanitizers;

5) to ensure regular cleaning of all surfaces that are frequently touched in the workplace, especially rooms and equipment such as toilets, door handles, fixed telephones, computer equipment and other work equipment;

6) to regulate the manner of keeping records on working and auxiliary premises’ disinfection, which the employer organizes and implements;

7) to ensure the instructions for safe and healthy work with contractors, suppliers, distributors and external associates;

8) to organize and ensure regular removal of waste and garbage (garbage cans lined with plastic bags) from the premises, so that they can be emptied without contact with the contents.

B) Measures taken in case of an infectious disease in the work environment outbreak, in order to suppress it:

The employer is obliged to ensure the application of preventive measures in the event of an infectious disease outbreak, in particular the following:

1) the area where the infected employee stayed is regularly physically and chemically disinfected and ventilated;

2) the procedures for entering and leaving the employer’s premises are respected, the prescribed means and equipment for personal protection at work and other protection measures during the work process are used;

3) the directions of movement of employees through working and auxiliary premises are precisely defined;

4) strict control of the movement of employees from the organizational unit in which the infected employee worked is organized;

5) contacts of employees from the organizational unit in which the employee who was infected was staying with other employees are reduced to the necessary ones with the prescribed protection measures;

6) all other measures recommended by the epidemiologist.

The obligations of the employee are as follows: 

1) to implement all preventive measures of safety and health at work in order to preserve his health, as well as the health of other employees;

2) to use the prescribed means and equipment for personal protection at work purposefully, and to handle them carefully, in order not to endanger his safety and health, as well as safety and health of other persons;

3) to take care of his hygiene additionally, by washing his hands regularly and correctly;

4) to keep his personal clothing separate from means and equipment for personal protection at work and from work clothes;

5) to inform the employer if he suspects the symptoms of a contagious disease in himself, other employees or members of his family;

6) before the beginning of work, to inspect his workplace, including the means for work he uses, as well as means and equipment for personal protection at work, and, in case of observed deficiencies, to inform the employer or other authorized person;

7) before leaving the workplace, to leave the workplace and means of work in a position not to endanger other employees;

8) in accordance with his knowledge, to inform the employer immediately about irregularities, harms, dangers or other phenomena that could endanger his safety and health at work or the safety and health of other employees;

9) to cooperate with the employer and the person in charge for safety and health at work, for the purposes of additional necessary measures for safety and health at work implementation.

The employer is obliged to adopt the Plan for the implementation of measures within 30 days from the date of the Rulebook’s entry into force, i.e. until August 10, 2020. Furthermore, with the possible occurrence of changes that affect the matter of health and safety at work during the epidemic, the employer will be obliged to harmonize the Plan with the decisions of the competent authorities.

By Stojkovic Attorneys

The Rulebook on Preventive Measures for Safe and Healthy Work to Prevent the Occurrence and Spread of the Infectious Disease Epidemic (“the Rulebook”) has been adopted and it will enter into force on July 11th 2020.

The employers are obliged to adopt the measures implementation plan within 30 days from the day of the Rulebook’s entering into force – the said plan should be an integral part of the risk assessment plan which is adopted in accordance with health and safety at work regulations. The obligatory elements of the measures implementation plan are:

1. The preventive measures and activities for prevention of the occurrence of the infectious disease epidemic – the employer shall provide written instructions on measures and actions for prevention of the occurrence of the infectious disease epidemic containing the information on symptoms of the infectious disease, implement enhanced hygiene and disinfection of work and auxiliary premises and regulate the manner of keeping records on such disinfection, reschedule working hours if possible by introducing shifts with fewer number of employees and fulfill other obligations prescribed by the Rulebook;
2. Responsibility for the implementation and control of the implementation of preventive measures and activities – The employer shall determine the obligations and responsibilities in respect of monitoring and control in the measures implementation plan. Person in charge for health and safety at work with the employer performs the check of the effectiveness of the implementation of safety and health measures of employees at work;
3. Measures and activities for action in case of occurrence of an infectious disease epidemic – Additional obligations for the employer are prescribed in case of occurrence of the infectious disease among employees, such as: directions of the employees’ movement within the premises shall be precisely defined and procedures of entrance to and exit from the premises of the employer are to be respected; prescribed means and equipment for personal protection at work and other protection measures during the work process are used.

The Rulebook also stipulates obligations of the employees in regard to preventing the occurrence and spread of the infectious disease epidemic, such as the obligation of the employee to inform the employer if he/she suspects having the symptoms of the infectious disease, or if he/she suspects that members of his family or other employees have such symptoms.

By Jelena Nikolic, Partner, and Andrea Cvetanovic, Senior Associate, JPM Jankovic Popovic Mitic

In accordance with the Law on Health and Safety at Work, the Ministry of Labour, Employment, Veteran and Social Affairs passed a Rulebook on preventive measures for safe and healthy work for prevention of onset and spreading of epidemic of communicable disease (“the Rulebook”), published in the Official Gazette of RS no. 94/2020 on 3 July 2020 that will enter into force on 11 July 2020.

Reasons for Rulebook adoption

Having in mind that the Order on declaration of epidemic of communicable disease COVID-19 of 19 March 2020 is still in force, the new Rulebook prescribes preventive measures that an employer shall be obliged to apply for preventing the onset and spreading of communicable disease and for eliminating the risk for safe and healthy work of employees and persons in the working environment.

Rulebook application

The Rulebook shall apply to all working posts in a working environment where work is conducted, except for field work and work from home.

Plan for measures application

The new Rulebook stipulates an obligation for employers to adopt a plan for application of measures for prevention of onset and spreading of communicable disease, which is an integral part of the risk assessment act that is adopted under the law and regulations in the field of health and safety at work.

The employer shall be obliged, during the epidemics, to adjust the plan for measures application with the decisions of a responsible authority.

The plan for measures application shall contain:

• Preventive measures and activities for prevention of onset of epidemics of communicable disease;
• Duty to implement and control the implementation of preventive measures and activities
• Measures and activities for acting in case of onset of epidemics of communicable disease.

Plan for implementation of measures shall be adopted by employers by 10 August 2020.

Employer obligations

The employer shall be obliged to ensure the application of preventive measures at all working places in the working environment, in particular:

• Before the outset of work, to ensure written instructions and directives on measures and actions for prevention of onset of epidemics of communicable disease, which contains the information on symptoms of communicable disease;
• Depending on possibilities, if work in shifts has not been organised, to redistribute working hours by introducing second or third shift with fewer employees;
• To intensify hygiene and disinfection of working and auxiliary premises, including regular disinfection of premises and frequent ventilation of working premises;
• To provide employees with sufficient soaps, paper towels, tap water and alcohol-based disinfectants for handwashing;
• To ensure regular cleaning of all surfaces in working premises that are frequently touched, particularly premises and equipment such as toilets, door handles, fixed telephones, computer equipment and other working tools;
• To regulate record keeping on disinfection of working and auxiliary premises that is organised and implemented
• To ensure preparation of instructions for safe and healthy work with contractors, suppliers, distributers and external associates;
• To organise and ensure regular removal of waste and trash (bins containing plastic bags) from premises so that they can be emptied without contact with their contents.

Employers shall also be obliged to ensure the application of preventive measures in case of onset of communicable disease among employees, in particular:

• Premises where the infected employee stayed shall be regularly mechanically and chemically disinfected and ventilated;
• Respecting of procedures for entry into and exit from employer’s premises, use of prescribed means and equipment for personal protection at work and other measures for protection during work;
• Precise definition of employee movement directions through working and auxiliary premises;
• Organisation of strict control of movement for employees from organisational unit where the infected employee worked;
• Contacts of employees from organisational unit where the infected employee stayed with other employees shall be reduced to necessary minimum, including prescribed measures of protection;
• Application of all other measures as recommended by the epidemiologists.

The Rulebook also prescribes the obligations of employees regarding the application of indicated measures.

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 Jovana Milic, Senior Associate, and Natalija Dukic, Associate, PR Legal

More than two months have passed since the Serbian parliament lifted the state of emergency that was declared on March 15, 2020 over the coronavirus epidemic.

Unfortunately, the epidemiological situation in Serbia has worsened again in the meantime, which was followed by the declaration of emergency situation in 24 Serbian cities and municipalities, namely, Belgrade, Novi Pazar, Tutin, Kragujevac, Vranje, Ivanjica, Sabac, Cacak, Kraljevo, Arilje, Pozega, Uzice, Bogatic, Vladinicin Han, Lucani, Priboj, Aleksandrovac, Krusevac, Nova Varos, Brus, Cajetina, Prijepolje, Valjevo and Vladimirci (as of July 9, 2020).

New measures 

In Belgrade, where the situation is the most difficult and aggravating, the following measures have been introduced (as of July 9, 2020):

• complete ban on public gatherings of more than 10 people, indoors and outdoors;

• limitation of working hours of all indoor facilities (catering facilities, retail facilities, shopping centres, etc.), which enters into force on July 10, 2020 and provides for these facilities to be closed from 9 p.m. to 6 a.m. In addition, each indoor facility is obliged to have a clear indication of how many people are allowed to stay in that closed space, and that is four square meters per person;

• limitation of working hours of all open spaces and gardens, which envisages that these facilities will be closed from 11 p.m. to 6 a.m;

• mandatory wearing of protective masks, while respecting the physical distance of 1.5 meters, in all closed spaces and in the public city transport, suburban transport and intercity transport. Until recently, wearing protective masks in closed spaces was only a recommendation, while as of July 6, 2020, non-compliance with this measure is sanctioned with a fine in the amount of 5,000.00 dinars.

The epidemiological situation is being examined on a daily basis and, depending on the current situation, these measures shall be either removed, or the need for the introduction of additional and / or new, stricter measures will be considered.

In addition, other local self-government units in which an emergency situation has been declared are also obliged to take measures in order to prevent the spread of the infectious disease COVID-19 caused by the SARS-CoV-2 virus, whilst cities and municipalities where the epidemiological situation is stable do not have this obligation. 

Employment implications

How does the present situation, which implies the introduction of emergency situation in certain cities, without declaring the state of emergency on the territory of the entire country, reflect on the organization of work with the employer?

As a reminder, during the state of emergency, the Regulation on Organizing the Work of the Employer during State of Emergency (“Official Gazette of the RS” No. 31/2020) was in force in the entire country.

This Regulation defined the duty of employers to enable employees to perform work outside the employer’s premises (working remotely or working from home), at all workplaces where this type of work organization is possible.

If the employer, due to the nature of his business activity, is unable to organize remote work or work from home, it is necessary to adjust his business to the state of emergency as follows: to arrange shift work, so that as few employees as possible work simultaneously in one room, if this could be organized without requiring additional resources; to 

enable all business meetings to be held electronically or by other appropriate means (video link, video call, etc.); to postpone official travels in the country and abroad, in accordance with the decision of the competent authority on the ban, i.e. temporary restriction of entry and movement; to provide all hygiene measures to ensure the protection and health of employees and a sufficient amount of protective equipment (primarily protective masks, gloves and hygiene products) for employees in direct contact with clients or sharing a multi-person workspace.

But, with the abolition of the state of emergency on the territory of RS, this Regulation ceased to be valid.

However, the employers in a number of Serbian cities quoted above are again facing the same challenge – how to organize work process in a worsening epidemiological situation?

Despite the fact that the validity of the Regulation, which prescribed the duty of the employer to organize work outside its premises, if the work process allows that type of organization, ceased with the abolition of the state of emergency, many employers reintroduced work from home or remote work due to the introduction of the emergency situation in some cities.

Nevertheless, in the conditions of an emergency situation, this type of work organization is certainly recommended, in order to prevent the spread of the infection, but it is not an employer’s duty to organize work in this manner.

Therefore, any employer in Serbia may now freely decide whether to introduce work from home again or not. 

Nonetheless, the employer is always obliged to provide the employee with proper working conditions that satisfy safe and healthy standards and requirements, and to organize work in a manner that it does not harm the employee’s life and health, as well as to provide the employee with information on rights and duties arising from health and safety at work regulations.

At the same time, the Law on Health and Safety at Work (“Official Gazette of RS”, No. 101/2005, 91/2015 and 113/2017), prescribes the employer’s duty to provide preventive measures when organizing work, in order to protect the life and health of all employees, which, therefore, also includes employees who perform work outside the employer’s premises. Preventive measures include all measures that are taken or planned to be taken by the employer, at all levels of work, in order to prevent injuries or damage to the health of employees.

Therefore, the employer is obliged to provide all employees with workplace and work environment in which safety and health measures have been implemented, regardless of whether the employee’s work takes place at the employer’s premises or remote work is organized, and regardless of whether work is performed in regular or extraordinary circumstances, such as state of emergency or emergency situation.

Also, the employer has the obligation to organize work process in a manner that work does not even endanger the employers’ safety and health at work, and the obligation to take care of the employees’ protection of life and health at work, taking into account regular preventive measures, as well as protective measures provided by applicable laws and bylaws of the competent state bodies, adopted in order to prevent the spread of infectious disease COVID – 19.

Can employees refuse to come back to the office?

On the other hand, some employers face dilemma how to approach the knotty issue of asking staff to come back to a workplace.

And, in such context, can employees refuse to return to the standard regime of work that takes place at the employer’s premises, due to the fear from the virus, and continue to work from home on their own initiative?

The answer would seem to be twofold, and it would ultimately depend on whether a particular refusal is legit or not.

Generally speaking, any employee who feels that his employment rights have been violated in any respect may resort to due protection from the Labour Inspectorate, regardless of the circumstances in which, in the opinion of the employee, his right has been violated.

In this particular instance, if a suspecting employee deems the employer’s premises or practices do not conform with preventive and protective measures for the health and safety of workers while engaged in their work during the pandemic (concretely, disinfection of premises, protective masks and gloves, safe distance, etc.), such an employee is authorized to demand from the competent Labour inspection (i.e. the Directorate for Safety and Health at Work) to perform supervision and inspection of such employer.

And, if the authority determines that the employer has not provided all prescribed measures for health and safety at work, the employer exposed to fines and measures due to misdemeanour liability.

In such situations, the refusal of the employee to return to work at the employer’s premises would be regarded as legitimate, and cannot be considered as a justified reason for termination of her/his employment agreement.

But, even though an employee’s fear of infection resulting from unsafe working conditions at the employer’s premises determined by the competent authorities is of an objective nature in this case, such an employ shall, nevertheless, be obliged to fully and properly perform his work tasks from home.

However, if the employer has taken all prescribed measures to protect its employees at work, and provided all protective equipment, but did not issue a decision on performance of work outside his premises during the emergency situation, then employees are obliged to respond to the employer’s behest and return to work at the employer’s premises.

In this case, given that the employer provided safe and healthy working conditions, the employee’s fear of the virus would not be considered a justifiable reason for the employee’s refusal to return to the standard work mode that takes place at the employer’s premises.

In this regard, unjustified absence from work would constitute grounds/reason for termination of the employment agreement, since any absence of the employee must be justified, either by her/his employer’s decision (in case of paid or unpaid leave, use of annual leave, or temporary leave with compensation earnings), or a leave introduced on a basis of a doctor’s report, due to the employee’s temporary work incapacity.

For this reason, the employee, in agreement with the employer, in each specific case must arrange and cover his absence with some of the enumerated Labour Law institutes which are at his disposal. Otherwise, the employer may terminate the employee’s employment agreement due to his unjustified absence from work, since this type of employee’s behaviour is considered as an example of non-compliance with work discipline, in terms of the provision of Article 179, paragraph 3 of the Serbian Labour Law.

If the employer considers that mitigating circumstances appear in a particular case, or that non-compliance with work discipline is not of such nature that the employee’s employment should be terminated (especially considering the fact that everyone reacts differently to new circumstances, and that it is unfair to a priori characterize the employee’s fear as irrational, because all the prescribed measures have been implemented, and, objectively speaking, there is no reason to fear), termination of the employment agreement may come across as too severe and radical in this type of circumstances. That said, the employer may still impose some other disciplinary measure for violation of work obligations or non-compliance with work discipline, prescribed by the provision of Article 179a of the Labour Law. These measures include the employee’s temporary dismissal without pay, for a period of one to 15 working days; a fine in the amount of up to 20% of the employee’s basic salary for the month in which the fine was imposed, for a period of up to three months, which is executed by suspension of salary, based on the employer’s decision on the imposed measure; a warning with a notice of dismissal, stating that the employer will terminate the employee’s employment agreement without the re-warning, if the employee commits the same violation of work obligations or non-compliance with work discipline within the next six months.

Conclusion

Therefore, the employer’s duty is to provide all employees with the workplace and the work environment in which all health and safety measures have been implemented, both preventive measures taken in regular circumstances and protective measures provided by applicable laws and regulations of competent state bodies, adopted in order to prevent the spread of infectious diseases COVID – 19, as well as to organize the work process in a manner that it does not endanger the employees’ health and safety at work, and to take care of protection of the employees’ life and health.

If the employer has taken all the above measures, the employee is obliged to carry out the employer’s orders, and to return to the standard regime of work in the employer’s premises, provided that the employer has not reintroduced the regime of work outside its premises.

Another option for employee is, in agreement with the employer, to apply an adequate legal institute which justifies his leave, or reorganization of work outside the employer’s premises, if the work process allows it.

In any case, the employee’s fear that is not objective and justified cannot be considered a sufficient reason for her/his refusal to return to the regular workplace, since such employee may be exposed to the risk of disciplinary measure, including the termination of the employment agreement.

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

On 26 June 2020, the Government of Serbia adopted a decree* allowing citizens to obtain cadastre excerpts at the notary public office or at a geodetic organisation. Hence, when citizens are in need of the public notary services or of services provided by the geodetic organisation, it will be possible from now on to finalize the procedure in the public notary’s or geodetic organization’s office.

Having in mind that in most cases the cadastre excerpts are requested due to procedures related to the public notary or geodetic organization’s office, it is expected that the decree will relieve the administrative burden on the Real Estate and Utility Cadastre (RGZ).

This change is a welcome step in the overall government strategy aimed to improve both, the efficiency of RGZ, and the overall favourability of local business environment, as measured by the World Bank Doing Business List criteria.

The Decree entered into force on 4 July 2020.

*Full name of the decree: Decree on the Conditions of Issuing Cadastre Registry and Utility Excerpts from the Geodetic-Cadastral Information System by notaries and Geodetic Organizations (“Sl. glasnik RS”, no 91/2020). 

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 Samardzic, Oreski & Grbovic