Sunday, January 16, 2011

Contracts with Slovak Public Bodies have to be Published Online to become Effective

Huťko got some news for you (and there are bits of IP law as well). Slovak parliament passed the amendment (Act. No. 546/2010) to Slovak Civil Code (Act. No 40/1964 Coll. ) and to Act on Free Access to Information (Act. No. 211/2000) which sets up the category of Obligatory Published Contract (OPC). No OPC will come into legal effect without being published online. The rule is that OPC will come into effect on the day following the day of their publication online. The effectiveness of OPC may be postponed upon the agreement of the contractual parties. These provisions will apply also in case, when the contract is governed by different law (e.g. French). They will be regarded as overriding mandatory provisions according to the article 9 of the Rome regulation.

And now, you'r probably asking what falls within the category of OPC? Act on Free Access to Information sets out in the section 5a these three conditions:

a) it has to be written contract,
b) concluded by so called "Obligee" and
c) has to contain information that was obtained for public funds, concerns use of public funds or disposition with the property of the "Obligees".

(please note these conditions are not 100 % accurate as Huťko was trying to make it short for you and gasp the philosophy of the provisions only)

"Obligees" are state agencies (including parliament, government, courts, etc.) municipalities, legal entities established by law and by state agencies, as well as legal entities and natural persons that have been given the power by law to make decisions in the area of public administration.

There are of course some exceptions to this rule such as labour contracts, army contracts etc. Some OPCs are published in Central Register of Contracts, Commercial Journal and some on the website of the "Obligee" (there are certain rules).

So where is that promised IP question? Well, some parts of the OPCs obviously do not have to published. In particular those which contain trade secrets or could endanger intellectual property (unless there is a consent of the proprietor). I can clearly see that lots of provisions will be omitted from publication because of IP rights. However, as you may expect, in the most cases it will be done so not because of some deep respect of IP rights, but to avoid transparency and circumvent the provisions in question (invoking copyright laws for instance?). IP rights v. transparency of the government could possibly be another challenging question in the future.

Huťko is really looking forward to see the effect of this provisions in praxis. In particular the case-law relating to evidence of the publication moment and IP rights protection. For some discussion of this amendment please refer here (only Slovak).

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