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News - 16/12/20

Colombian Superintendence of Companies (“SS”) imposes new criteria that should be followed by companies for compliance purposes

The Superintendency of Companies, the Colombian regulatory agency responsible for supervising and regulating commercial companies in the country, recently issued, on 10/02/20, Resolution nº 100-006261, creating new criteria to establish which companies need to adopt Business Transparency and Ethics Programs (PTEE), revoking previous regulations regarding the topic.

The Business Transparency and Ethics Program, according to the Colombian Law 1778 of 2016, must be implemented establishing mechanisms that allow to identify, prevent and respond to undesirable conducts, with the creation of controls, procedures and policies that take into account risks of corruption.

The new regulation comes into force at the beginning of 2021. The companies that meet the new parameters established by the Colombian agency each year-end (December 31), have until April of the following year to implement such a program. The 4 months deadline to implement the program  is one of the changes introduced by the new resolution – the old rules allowed a 6 months deadline to complete this task.

Moreover, other innovations brought by Resolution nº 100-006261 are the following: (i) the elimination of the company sector criteria – which means that now, regardless of the section of business of the company, if the requirements of the new regulation are met, the PTEE should be implemented; (ii) companies that have international and transnational business may also be required to follow the new parameters, (iii) other changes were implemented such as the decrease in the amount in revenue values and the total assets of the company, and the elimination of the direct employees criteria.

According to the new regulation, the company will have to comply and implement the Transparency and Ethics Business Program if it fits the following requirements: (i) is a company supervised by the Colombian SS, (ii) a company that has conducted international business or operations directly or through an intermediary, a contractor, a subordinate company or a branch in the previous calendar year, (iii) that such business or operations is equal or higher (individually or jointly) to 100 current legal minimum wages[1] and, (iv) that the company has a total revenue or assets equal or greater than 40,000 current legal minimum wages.[2]

Finally, companies that meet the aforementioned requirements that do not comply with the resolution and do not implement a PTEE may face sanctions. In the case the PTEE is not structured in the correspondent deadline, the company may be subjected to an administrative investigation, to be conducted by the SS. In this context, the regulatory agency has authority to impose a fine up to 200 current legal minimum wages[3], depending on the result of the investigation. This sanction can be enforced again, if the company remains reluctant to fulfill its obligation to implement a PTEE. Also, the existence and effectiveness of a business ethics program is a criteria used by the SS in order to decrease sanctions for acts of transnational bribery when imposing fines to companies.

 

[1] In 2020, tbe mentioned amount would correspond to US$ 23,100.00.

[2]  In 2020, the mentioned amount would correspond to US$ 9,240,032.00.

[3] In 2020, the mentioned amount would correspond to US$ US$46,200.00.