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Mandatory publication of contracts

Daniel Futej

In order to ensure transparent and economic dealings with public property, the Slovak Republic has adopted Act 546/2010 Coll, which came into force on January 1 2011. According to this act certain contracts are subjected to mandatory publication. These are written as follows:

"... contracts concluded by a liable party and which (i) contain information obtained with public means, or which (ii) concern the use of public means, dealing with state property, town property, municipal property or the property of legal entities established by law, in accordance with law, or concerns dealing with funds of the European Union."

Contracts must only be published where one of the contracting parties is a so-called liable party: state authorities, towns, and other entities specified by law, which deal with public means. Certain contracts and certain parts of contracts specified by the law are exempted from mandatory publication.

Contracts which are subject to publication become effective on the day following their publication. This means that such contract has no legal effect and does not constitute any rights or duties until such time as said contract is published. If the contract is not published within three months of being concluded or from the time consent was granted by the relevant authority (if such consent is required for its efficacy), it is deemed that the contract was never concluded.

The law stipulates terms and condition and specific types of bulletins where the contract must be published. The website under certain terms specified in the law may also serve this purpose. The new law does not stipulate the length of time for which the relevant contract must be published.

The publication duty also affects those provisions of a contract which contain information defined as confidential by the contracting parties. Furthermore, the publication of contracts is not deemed a violation of a trade secret. This means that the duty to publish the designated types of contracts can not be avoided by the claim of the contracting parties that some of the information in the contract relates to trade secrets or is defined as confidential by the parties.

The new rules (under the new Act) apply to all contracts concluded after January 1 2011 (including amendments to older contracts concluded after this date). An exception to these rules is a contract on provision of healthcare, which will not be subject to mandatory publication until July 31 2011.

It is deemed that the law prevents automatic extension of contracts which are subject to publication and which were concluded for a fixed period. (Previously, in practice, the duty of public authorities to call for a new tender for the delivery of certain goods and services upon the expiration of a fixed-term contract with the previous supplier was side-stepped.) Furthermore, the Act also brings new rules for terminating contracts which are subject to publication, in order to prevent public authorities from concluding so-called non-terminable contracts.

The new Act contains an important provision pursuant to which the new rules (duty to publish certain contracts, limited term of contracts, limits on contractual freedom in conditions for terminating contracts) apply regardless of the law which governs the contract.

Daniel Futej and Branislav Mikulay

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