New Decree to Guarantee the Protection of Personal Data Processed by Business Groups

The Colombian Ministry of Commerce, Industry and Tourism issued Decree 255 of 2022 which establishes the minimum conditions and requirements that the Binding Corporate Rules implemented in a business group must comply with. These rules consist of principles, policies and codes that impose duties and obligations to the members of a business group in charge of processing personal data, in order to guarantee the protection and respect of the data holders’ rights and compliance with all regulations. All companies that are part of the same business group and that transfer personal data to a member of the group located outside Colombian territory, who will be responsible for the processing of these data, must comply with these provisions. In this regard, according to Law 222 of 1995, a business group exists when there are several related companies with relation of subordination between them and have unity of purpose and direction. As such, there is a parent company that sets an objective and controls the other subordinate companies so that together they all pursue said objective.

This new decree establishes that Binding Corporate Rules must be aligned with the general obligations imposed on individuals in charge of the processing of personal data, and must implement mechanisms that guarantee the data holders’ rights and ensure fulfillment of their duties. In case of non-compliance with these rules, all companies that are part of the business group will be jointly and severally liable, in other words, the Colombian Superintendence of Industry and Commerce (SIC) may investigate and penalize any of the members for the actions of any other member.

Business groups must submit these rules for the approval of the corresponding corporate body as established in the by-laws or the business group’s agreements in order to formally submit them to the SIC who will verify compliance with all the requirements and issue a certification so that they may be applied. However, the SIC must first publish on its website the date from which it will begin to receive requests for this review and certification.

Remember that, in case your company is part of a business group and transfers personal data to a member located outside of Colombia, you must implement these Binding Corporate Rules; contact us to help you in this process and solve any doubts you may have.

Complaints About Workplace Harassment Filed by Former Workers before Internal Complaints Committees are Inadmissible

The Colombian Ministry of Labor recently responded to a query on the competence of Internal Complaints Committees (ICC) of companies or public entities, regarding complaints about workplace harassment made by former workers. In this regard, bear in mind that workplace harassment is understood as all those persistent and demonstrable actions directed against workers with the purpose of “instilling fear, intimidation, terror and anguish, to cause labor damages, generate demotivation at the workplace, or induce resignation”[1]. These behaviors can be done by both bosses or hierarchical superiors, as well as co-workers or subordinates.

Thus, the Colombian Ministry of Labor reminded the petitioner that the ICC of any company or entity is intended to prevent workplace harassment against workers, for which it must implement internal and confidential procedures through which it will ensure the resolution of conflicts arising between workers. However, in accordance with the functions recognized for these committees in Resolution 652 of 2012, their actions are purely conciliatory, requiring the presence of the involved parties so that the committee can mediate the situation and propose different solutions that may resolve the conflict and guarantee an improvement in workplace environment. However, the Ministry of Labor affirmed that this process cannot be carried out when one of the parties no longer works in the company, since approaching those involved to reach an agreement would not be possible. Likewise, the actions and decisions taken by the committee would have no effect since compliance with the agreements reached could not be guaranteed or enforced.

Therefore, the ministry affirmed that ICCs lack authority to receive and process these complaints presented by former workers of the companies, who must instead resort to judicial or administrative authorities so that the case can be investigated and penalties imposed in accordance with the provisions of article 10 of Law 1010 of 2006. It should be noted that one of the consequences of workplace harassment being proven is the legal presumption that the termination of the employment contract was without cause, with the corresponding payment of compensation required and possibly even nullification of the decision that led to the unilateral termination of the employment contract.

In BéndiksenLaw we can provide you with support and legal advice on this and any other labor issue, contact us.


[1] Article 2nd, of Law 1010, 2006.

Do you Know the Minimum Guarantees that You Must Provide For the Sale of Goods and Services?

Recently, the Colombian Superintendence of Industry and Commerce – SIC, referred to the minimum guarantee suppliers and / or producers must provide in terms of the quality and suitability of the goods and services they offer and what its scope includes. The Colombian Consumer Statute establishes that producers and / or suppliers of goods and services have an obligation to guarantee to consumers the quality, suitability, safety and good condition of the products and services offered. In the event the purchased products are damaged, consumers are able to request a repair free of charge, and in case the damage persists, they can request, at their choice, an additional repair, the exchange of the good for another of the same kind and characteristics or the total or partial refund of the price that was paid. Likewise, for cases in which the provision of services is purchased, the consumer has the right to demand the provision of the service under the conditions that were initially agreed upon or the refund of the price that was paid.

Following the above, in Judgment 1088 of 2022, the SIC affirmed that the minimum guarantee of quality and suitability of goods or services is not limited to the quality of the object or service itself but also extends to compliance with the terms and conditions that were agreed upon at the time the contract was executed, including the timely delivery of the good or the timely performance of the service. Thus, the guarantee begins from the moment in which the contract existed which implies the possibility of requiring the seller or the service provider to deliver the object or perform the work for which they were contracted in the previously stipulated terms.

For the case that was analyzed in the judgment, the petitioner had hired the building of an integral kitchen, paying an advance of the price to guarantee its construction. However, the defendant failed to comply with the agreed deadline for the delivery of this kitchen and refused refund the advanced payment when it was requested by the petitioner. Thus, the Superintendence found that these conducts had constituted a violation of the rights of the petitioner as a consumer, since the service had not been provided in a timely manner and under the terms that were agreed upon by both parties, in turn ordering the service provider to make the reimbursement of the amount that was paid in advance.

Remember the importance of guaranteeing not only the quality and suitability of the goods and services that your company offers, but also of fully complying with what is agreed in the contracts executed with your customers and clients. Our professionals have the knowledge and expertise to advise you in the drafting, reviewing and fulfillment of your contracts, contact us if you have any questions.

Cryptocurrency Transactions in Colombia Are Subject to Inspection by the Tax Authority

On January 28th, the Colombian National Tax Authority (DIAN) reported that, due to the popularization and increase in the use of virtual currencies, it has initiated actions aimed at supervising taxpayers who make use of these currencies. The purpose of these actions is to guarantee due tax control over those taxpayers who have omitted or inaccurately registered information regarding the income they have obtained from operations carried out with cryptocurrencies.

Likewise, the DIAN recalled that it has previously issued official documents[1] in which it indicates what the fiscal management that must be given to cryptocurrencies and the operations carried out with them is, as well as their correct filing, in order to comply with all the tax obligations that arise from the performance of operations with these virtual currencies. This way, the DIAN clarifies that with these measures it hopes to strengthen the fight against tax evasion and against money laundering and the financing of terrorism.

Therefore, we remind you of the importance of having correct counsel on these issues and the opinion of a tax professional to help ensure that you and your company comply with all tax obligations and avoid the imposition of sanctions. At BéndiksenLaw we have the experience and knowledge to help you. Contact us.


[1] Documents 314, 20733, and 35238 of 2018 and Documents 6321, 14244, and 20419 of 2019, among others.

Colombian Ministry of Labor Clarifies the Duration of Paternity Leave

The Ministry of Labor defines paternity leave as paid rest recognized to the father of a newborn, in order to guarantee the rights of the minor, ensuring the father´s accompaniment and care of the child during the first days of life without affecting the financial situation of the family[1]. For this reason, Law 2114 of 2021 extended its duration from eight (8) working days to two (2) weeks.

However, this law did not refer to the way in which these weeks should be counted, that is, whether only working days should be considered for counting this two (2) week term or whether, on the contrary, holidays should also be counted. Therefore, the Ministry of Labor recently issued an opinion resolving this concern and confirmed the existence of a regulatory gap regarding how to count this term. Thus, the ministry stated that in the absence of labor norms that regulate the counting of deadlines and terms, the provisions of article 70 of the Colombian Civil Code must be applied by analogy, according to which, the deadlines indicated in laws and decrees include holidays, unless expressly specified otherwise.

Therefore, the Ministry of Labor concluded that the period of time during which fathers will be able to enjoy their recognized paternity leave is given in calendar days and not working days, so holidays and weekends must be counted. In conclusion, paternity leave will correspond to fourteen (14) calendar days.

If you have doubts regarding the way in which this license or any other labor matter operates and affects your company, do not hesitate to contact BéndiksenLaw.

[1] Answer to petition No. 02EE2019410600000062800 of 2019.

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.

Colombian Senate Approves Bill that Seeks to Recognize the “Right to Disconnect”

On November 17th, the Senate of the Republic of Colombia approved in last debate the Right to Disconnect bill that seeks to guarantee respect of workers’ free time and breaks so that they can fully enjoy these spaces and reconcile personal and family life with work. This bill will enter into force once it is sanctioned by the President and published.

This initiative establishes that employers will not be able to contact their workers for work issues through any means at hours that are not part of the work schedule, nor in workers’ vacations, leaves, permits or breaks. In the event that this is breached, workers may use the means provided by the employer to file the corresponding complaint. However, this does not prevent workers from also resorting to Labor Inspectors, or to the Attorney General’s Office in the case of public servants, considering that the persistent or recurrent infringement of this right may be understood as workplace harassment. Likewise, employers must bear in mind that they may not demand compliance of any type of agreement or pact that does not respect this right and non-compliance by workers may not be considered as a breach of their labor obligations, which is why penalties of any kind or dismissal may not be imposed on those who make use of their right to disconnect.

Additionally, in order to ensure effective compliance with these provisions, a labor disconnection policy must be implemented by all employers. This policy must refer to the way in which this right is guaranteed and exercised and the guidelines regarding the use of Information and Communications Technologies. Likewise, it must establish the means available to workers to file complaints in their own name or anonymously, in case they consider that their right to disconnect from work is being ignored or affected. Such complaints should be dealt with through a special procedure that ensures due process, the resolution of the dispute and the cessation of the breaching conduct.

However, workers and public servants who hold positions of direction, trust and management and those who perform tasks that require their permanent availability, may not benefit from the provisions of this bill. Likewise, employers may contact their workers after working hours or during their rest times when situations of force majeure or fortuitous events required it, during which the continuity of the business and its correct operation are threatened. However, these situations must be duly justified.

At BéndiksenLaw we are aware of the legislative changes relevant to your company. If you have any questions about the application of the right to disconnect from work, please contact us.

Criteria to Determine Whether a Company Should Be Liquidated Under the “Ongoing Business Hypothesis” Are Modified

In August of this year, the “ongoing business hypothesis” was adopted as a cause for the dissolution of commercial companies, repealing those provisions that referred to losses that reduced the company’s equity by certain percentages, depending on the type of company. With the ongoing business hypothesis, instead of establishing a certain percentage of losses, the intention, but above all the capacity, that the company has to continue with its operations in the future is taken into account, and the highest corporate body is the one called to analyze the situation and make the corresponding decisions regarding the continuity of the company’s operations.

However, on October 28, Decree 1378 of 2021 was issued and it modified the criteria on equity loss and insolvency risks in commercial companies. These new criteria allow directors to monitor the financial situation and make projections of the company in light of specific indicators to determine if there are possible equity losses and / or insolvency risks that must be reported in a timely manner to the highest body of the company.

According to these modifications, in the event that the total assets of the company are less than $0 a loss of equity is to be understood. Likewise, there is a loss of equity when negative profits are obtained in the results of two consecutive corporate years. On the other hand, there will be a risk of insolvency when during two consecutive corporate years a result of less than 1.0 is obtained from dividing current assets by current liabilities for each year. With these indicators, and others that are applicable depending on the business model and the economic sector in which the company does business, directors must determine if calling a meeting of the highest corporate body to decide on the dissolution of the company is necessary.

BéndiksenLaw provides comprehensive legal counsel on corporate issues. If you have doubts regarding any of these issues, do not hesitate to contact us.