Superintendence of Corporations Reminds of Duty to Register “Situations of Control”

The Colombian Commercial Code establishes that in cases where the decision-making power of a company is subject to the will of another person or persons, there exists a “situation of control” that, in accordance with article 30 of Law 222 of 1995, must be registered before the Chamber of Commerce within 30 days following the existence of this situation. In the event that this registration is not carried out within the established time, the Superintendence of Corporations may declare the existence of this “situation of control”, order the corresponding registration and impose fines of up to 200 monthly minimum wages for this omission. However, this authority that the superintendence has to impose fines expires after five (5) years in accordance with the provisions of article 235 of Law 222 of 1995.

In consideration of this, through Official Document 220-003089 of January 14th, 2022, the Superintendence of Corporations reminded companies of their obligation to make this registration in the aforementioned terms, as this is information that serves the public interest. Therefore, the superintendence specified that despite the fact that the possibility of imposing fines expires in time, this term cannot be calculated from the beginning of the breach but from the time it ceases. In other words, the authority that the superintendence has to impose penalties that may be applicable for not complying with this registration duty does not expires after five (5) years starting from when the company failed to make the corresponding registration but from the time the registration is actually made or the “situation of control” ceases to exist.

Thus, it is not possible to conclude that if the “situation of control” was configured more than five (5) years ago and has not yet been registered, there will not be any fines, thinking the authority of the superintendence to enforce them has already expired. On the contrary, while a company continues in breach of its obligation, the imposition of penalties will continue to be possible for five (5) years after the corresponding registration is made or the existence of the “situation of control” ceases.

Remember to fully comply with your company’s legal obligations and avoid the imposition of penalties. In case you have doubts regarding this or any other obligation, at BéndiksenLaw we can advise you. Contact Us.

New Recommendations for Workers’ Protection During the Fourth Peak of the COVID – 19 Pandemic

On January 13th of this year, the Ministries of Labor and Health and Social Protection issued Joint Document No. 004 of 2022, which promotes new preventive measures against the increase in COVID-19 infections that has been occurring in the country due to the spread of the Omicron variant, in order to guarantee the health and biosecurity of workers and to reduce the demand for health services. Thus, new guidelines were issued regarding mandatory isolation that must be complied with immediately by those who have symptoms as well as those who are asymptomatic but have been in close contact with a confirmed case of COVID-19.

Consequently, symptomatic people, regardless of their vaccination status, health risk factors or their age, must isolate themselves for seven (7) days from the onset of symptoms without requiring a diagnostic test which, in accordance with the guidelines for the use of diagnostic tests for COVID-19 in Colombia, are reserved for people over 60 years old, children under three (3) years of age and those with health risk factors. Thus, the onset of symptoms is enough for isolation to be necessary, without this preventing individuals from going to a health care professional to receive attention.

Similarly, people who are asymptomatic but who have had close contact with a confirmed case of COVID-19 and who have not completed their vaccination, should also isolate for a period of seven (7) days from the first day of exposure. In the event that the person cannot perform telework or remote work, they can go to a health care professional who can order the diagnostic test to clarify their situation and avoid the spread of the virus among their co-workers. However, in cases were individuals have completed their vaccination, they need not comply with the isolation order nor have the diagnostic test performed, they must only refrain from participating in events that involve crowds and must avoid close contact with people over 60 years, children under three (3) years or with people who have any risk factor for a period of seven (7) days from the day of exposition.

In summary, this is how the mandatory isolation and diagnostic testing will proceed:

It is important that employers take into account that once the worker complies with this mandatory isolation, they may return to their work activities without it being necessary for them to present a diagnostic test for COVID-19. Lastly, these new measures do not authorize non-compliance with the labor protection measures that have been previously adopted by the Ministry of Labor in terms of employment protection in the context of the health emergency.

At BéndiksenLaw we are aware of the regulatory changes relevant to your company. If you have any questions about how this mandatory isolation operates or any other measure that may affect your company in the framework of COVID-19, please contact us.