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.