Applications for Registration or Transfer of Distinctive Signs of Business Groups

On August 5, 2022, the Colombian Superintendence of Industry and Commerce (SIC) issued Resolution 51804 of 2022, by which it added provisions related to applications for registration and transfer of distinctive signs of entities belonging to the same business group, to its Single Memorandum. In this regard, it establishes that when the authority carries out the examination of trademark registrability, it must take into account whether the precedents that prevent the registration or transfer of said sign belong to the same business group as the applicant, in which case, registration will not be understood as affecting the rights of a third party. (In this regard, bear in mind that there is a business group when: (i) there is a situation of control, that is, the decision-making power of a company depends on the will of another person or persons, and (ii) when there is unity of purpose and direction between members of the business group. Regarding this last requirement, the Colombian Superintendence of Corporations has established that it refers to all companies pursuing the same objective that has been set by the controlling company, without this preventing each of the companies from individually performing their corporate purpose and activities.)

For these cases, the resolution established that applicants have the obligation to inform the superintendence of the business group to which they belong. However, in the event that the applicant is a foreign person, they must provide: (i) a statement signed by the applicant’s legal representative or by any of the legal representatives of the member companies of the business group,  in which the existing unity of purpose and direction is exposed, and (ii) a document issued by the competent authority of the country to which the foreign person belongs, which also specifies the existing unity of purpose and direction among the members of the business group. Finally, it’s important to bear in mind that this resolution will come into force on September 1st of the current year.

In case of doubts, do not hesitate to contact us.

Learn About the New Colombian Regulation on Telework

On July 18, 2022, Decree 1227 of 2022 came into force, which modifies and adds some provisions on teleworking. In this regard, bear in mind that teleworking is a form of work organization that consists of the performance of activities by the worker using Information and Communication Technologies “ICT” as support. Thus, the contact between the worker and the employer occurs through ICT without requiring the physical presence of the worker in a specific place of work. Additionally, there are three types of teleworkers: (i) autonomous, when teleworkers use their own home or a different place agreed upon with the employer and only sporadically go to the company; (ii) mobile, when they do not have an established workplace and use mobile devices to perform their functions; and (iii) supplementary, when depending on the needs of the service, they work two (2) or three (3) days a week at home and the other days they work in the company. With this in mind, below we detail the modifications that you must take into account as an employer if you want to implement this type of employment contract in your company in Colombia:

  1. In the employment contract employers must indicate the necessary conditions for the performance of the functions assigned to the worker, the technological means required, the description of the equipment and computer programs and the responsibilities regarding the custody of work items and restrictions and responsibilities that the breaches of these conditions entail. Additionally, it must indicate the modality of telework that will be performed, the weekly working schedule that teleworkers will have, the security measures that they must know and comply with and the description of the minimum requirements in terms of ergonomics and technology that the workstation must comply with. Finally, the employment contract must indicate the procedure that teleworkers must follow to return the equipment that was delivered to them once the telework or contract ends.
  2. The previous requirement to include in the Internal Work Regulations (RIT, by its Spanish acronym) the special conditions for teleworking to operate and the provisions related to the proper use of equipment, programs and information management applicable to these workers, has been eliminated.
  3. The following obligations are established for employers: (i) affiliate teleworkers to the Labor Risk System and inform the workers’ compensation administrators (ARL, by its Spanish acronym) about the chosen telework modality, the weekly working schedule and the corresponding risk class. Additionally, for supplementary and autonomous teleworking, the chosen workplace for the teleworker to carry out their functions must be reported and for mobile telework, the conditions in which the contracted work will be performed; (ii) in the Annual Work Plan of the Occupational Health and Safety Management System (SG-SST, by its Spanish acronym) all the actions considered necessary to identify and control the dangers and risks of the company’s teleworkers must be implemented; (iii) order periodic medical evaluations that may be performed by telemedicine; (iv) adopt and publish a telework policy in which the terms, characteristics and conditions of teleworking are regulated in accordance with the needs and particularities of the service; and (v) inform the Colombian Ministry of Labor about the number of teleworkers that their company has.
  4. Towards teleworkers, employers have the following obligations: (i) inform them of the communication mechanisms they have to report any updates related to the performance of telework, work accidents and occupational diseases; (ii) provide them with adequate work equipment and tools, ensuring that they receive training and information on the risks arising from their use. However, this does not prevent teleworkers from using their own equipment and work tools; (iii) respect human dignity, the right to privacy and access to information of teleworkers; (iv) guarantee the right to disconnect from work and protect the mental health and emotional balance of teleworkers; (v) train them in advance, virtually or in person, in terms of mental health care, ergonomic or biomechanical risk factors, use and appropriation of ICT and digital security; (vi) inform them about the restrictions on the use of computer equipment and programs, protection of personal data, intellectual property, information security and penalties for non-compliance with these provisions.
  5. The possibility that the parties retain the right to reversibility of teleworking is established. That is, the parties may have the power to request at any time the definitive return of teleworkers to perform their functions in person at the company. However, this will depend on what the parties agree to in the employment contract and the possibilities that the employer has to locate the worker within their company.
  6. This decree states that the parties must seek flexibility regarding the time and mode of performance of the teleworker’s functions, provided that the established weekly working schedule is met. For this, the parties will be able to agree on schemes of compliance and monitoring of functions. However, this flexibility cannot affect the effective rest of teleworkers or their right to disconnect from work.
  7. The possibility that the parties agree that the teleworker use their own work equipment and tools is established. In this case, teleworkers must keep their equipment and tools in good functional condition to fulfill their functions and employers must refrain from subsequently requesting equipment other than those agreed upon. The parties can agree on a compensatory amount for the use of these tools, but it is NOT mandatory.
  8. The parties can agree on a monthly aid to compensate for the teleworker’s expenses on Internet, land and mobile telephony and energy. This aid is NOT mandatory and will depend on the will of the parties.

In case you have any doubts, please contact us.

Virtual Meetings of Corporate Organs After the Health Emergency

The Colombian Superintendence of Companies recently reminded the public that, despite the fact that the health emergency has ended, Decree 398 of 2020 is still in force. Therefore, it is possible for corporations to continue to hold their partners’ meetings, general assembly of shareholders or meetings of the board of directors in a non-face-to-face manner and complying with the requirements established both in the law and in the company’s bylaws.  In this regard, bear in mind that in order for non-face-to-face meetings to be held it is necessary that all members or partners participating in the meeting be able to deliberate or decide by simultaneous or successive communication, in accordance with the provisions of article 19 of Law 222 of 1995.

Additionally, the aforementioned Decree 398 establishes that the company’s legal representative must record in the minutes of the meeting on the continuity of the necessary quorum throughout the meeting. That is, they must certify that during the meeting the necessary number of participants were present to deliberate and decide in accordance with what is established in the law or in the bylaws of each company. Likewise, they must verify the identity of the participants to guarantee that they are in fact the partners, shareholders, or members of the board of directors or their proxies, as appropriate.

Finally, this decree specifies that legal and bylaw provisions on summons, quorum and majorities for in-person meetings are applicable to partners’ or shareholders’ meetings or the meetings of the board of directors held in a non-face-to-face or mixed manner (which allow the presence of participants both physically and virtually).

Contact us in case you require counsel regarding this or any other issue affecting your company.

The Deadline to Pay the Legal Bonus is Approaching

According to article 306 of the Colombian Labor Code, employers have the obligation to pay their employees a social benefit called “Legal Bonus” corresponding to 30 days of salary per year, that is, for each year worked, 30 days of salary must be recognized. This Legal Bonus must be recognized in two payments: half by June 30th at the latest and the other half no later than the first twenty days of December. The recognition of this payment must be made for the entire semester worked or proportional to the time worked.

In addition, bear in mind that all workers who are bound by an employment contract are entitled to the Legal Bonus, including domestic workers, family service drivers, daily workers or farm workers and, in general, those who are considered as dependent workers.

In accordance with the above, by June 30th at the latest, you will have the obligation to pay an amount equivalent to half of the monthly salary received by your workers for those that began working on or before January 1st. For workers who began after January 1st, payment must be made in proportion to the time worked. In case you do not make the corresponding payment before this date, you must pay, as compensation, a sum equal to the last daily salary for each day of delay, up to 24 months. If after 24 months you have not yet made the payment, you must recognize default interests[1].

In case you have doubts about this or any other work obligation, do not hesitate to contact us.

[1] Colombian Labor Code. Article 65.

FAQ: Deposit of Financial Statements

Article 41 of Law 222 of 1995 establishes that companies’ financial statements must be public, which is why a copy must be deposited, along with certain additional documents, in the Chamber of Commerce of the company’s domicile. This way, the Chamber of Commerce may issue a copy of these documents to third parties that request them and pay the associated costs. Here we answer the most frequently asked questions.

1.Who must  deposit this information?

All commercial companies have the obligation to publicize their financial statements through the deposit of these documents before the Chamber of Commerce of the company’s domicile.

2. Is this obligation fulfilled with the renewal of the commercial registration?

No, these are two different obligations. Although it is necessary to provide certain financial information to be able to renew the commercial registration, this does NOT fulfill the obligation to deposit the company’s financial statements.

3. What information must be deposited with the Chamber of Commerce and what is the deadline to do so?

The aforementioned article 41 of Law 222 of 1995 establishes that a copy of  the following documents must be deposited:

  • General-purpose financial statements, which may be basic or consolidated[1], and that consist of:
    • The balance sheet,
    • The income statement,
    • Changes in equity statement,
    • Changes in financial situation statement, and
    • The cash flow statement.

  • The notes to the financial statements and,
  • The statutory auditor’s opinion, if the company has one.

Additionally, article 41 establishes that the deadline for making this deposit is within the month following the date on which the financial statements are approved.

4. Do the financial statements have to meet any requirements?

Financial statements must be prepared in accordance with International Financial Reporting Standards (IFRS). In addition, article 37 of Law 222 of 1995 establishes that the financial statements must be certified by the legal representative and the public accountant under whose responsibility they were prepared. This certification consists of declaring that the statements contained in them have been previously verified and that they have been faithfully taken from the company’s accounting books and comply with the requirements of the applicable technical regulations.  

In addition to the above, the financial statements may be submitted in a simple or authenticated photocopy with clear text so that their content can be reviewed without inconvenience. Additionally, the deposited documents’ name and date must be indicated and these documents must be signed by the company’s legal representative and by the public accountant that prepared the financial statements or the statutory auditor in cases where the company has one.

5. How is this information deposited?

The registration process of the documents mentioned above must be carried out before the Chamber of Commerce of the company’s domicile and may be done either virtually or in person, depending on the services offered by the corresponding Chamber of Commerce. For this, a letter signed by the company’s legal representative must be presented stating that the deposit of the financial statements will be made, along with the corresponding payment for these documents’ registration.

6. Are there any exceptions to this obligation? 

Article 41 establishes that the different entities that exercise “inspection, surveillance and control” may establish cases in which the deposit of this information is not required or an additional means of publicity is required. In this regard, it should be noted that, as a general rule, this entity is the Superintendence of Corporations, which has not established any exception or additional requirement for this obligation. However, depending on the economic sector in which a company’s activity is carried out, the inspecting entity may be different and there may be exceptions or additional requirements. (e.g. the Financial Superintendence inspects and surveils those companies that perform activities that involve the management, use and investment of resources collected from the public).

Moreover, this article establishes that in cases in which companies have already deposited their financial statements before the Superintendence of Corporations, either at the request of this entity or because they are obliged to annually present financial statements before this superintendence, it is not necessary to also deposit them before the Chamber of Commerce.

7. What happens if this obligation is not fulfilled?

The Superintendence of Corporations[2] has established that the non-preparation and dissemination of financial statements may result in the imposition of fines of up to 200 legal minimum monthly wages (approx. US$ 50.000). Additionally, the directors and the statutory auditor will be liable for the damages caused to the company, the partners or third parties for the non-preparation or dissemination of the financial statements.

In case you have doubts about this or any obligation of your company, do not hesitate to contact us.

[1] Superintendence of Corporations, Opinion 340-036460 of August 2, 2004

[2] Superintendence of Corporations, Opinion 220-51734.

FAQ: Non-Compliance with the “Ongoing Business Hypothesis” as a Cause for Dissolution

Law 2069 of 2020 expressly repealed the ground for dissolution for losses, according to which, companies had to be dissolved when losses decreased their assets below 50% of their share capital. In its place, this law establishes that companies will enter into dissolution for non-compliance with the principle of ongoing business hypothesis. Below, we answer the most frequently asked questions.

1.What is the ongoing business hypothesis?

It is understood as the intention and capacity that a company has to continue with its operations in the foreseeable future. Thus, an important consideration to take into account in the analysis of compliance with this hypothesis is if the company has the necessary resources to fulfill its obligations when they are enforceable[1]. In accordance with the above, in the event that the company’s financial, operational or legal information does not allow this continuity in business to be inferred, it will be understood that this cause for dissolution has been fulfilled, since the company has no real alternatives other than termination of its operations and liquidation[2].

2. When should compliance with this hypothesis be verified?

Decree 854 of 2021 establishes that verification of compliance with the ongoing business hypothesis must be done at the time of preparation of the general-purpose financial statements at the end of each financial year. However, during the accounting year, the company’s directors must monitor the company’s financial information to determine if there is any loss of equity or risks of insolvency.

3. What information should be considered when verifying this compliance?

Decree 854 establishes that, for the verification of compliance with the ongoing business hypothesis by the company’s directors, all information and projections about the company’s future must be considered. This information must cover, at least, the twelve (12) months following the end of the reporting period. Thus, it is presumed that in cases where a company has a history of profitable operations and easy access to financial resources, it complies with the ongoing business hypothesis and a detailed analysis is not required.

Additionally, Decree 1378 of 2021 establishes that, for the verification of compliance with this hypothesis, directors must take into account all the indicators that are applicable to the company’s business model and the sector in which the corporate purpose is pursued and, if applicable, the following:

  • In the event that the company’s total assets 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.
  • 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.

However, it is important to bear in mind that these indicators are intended to facilitate the monitoring of the company’s situation but the fact that there is a loss of equity and / or risk of insolvency does not necessarily imply that the company must be dissolved and liquidated. In these cases, the company’s directors must inform the highest company body of the possible breach of the ongoing business hypothesis, for it to determine if it is possible to continue with the company’s business or whether, on the contrary, it should be dissolved.

4. What should directors do if they find that the hypothesis is not met?

In cases in which directors reasonably consider that the company does not comply with the ongoing business hypothesis and that it is therefore in grounds for dissolution, or when the analysis of the financial statements and projections of the company indicates losses of equity and risks of insolvency, as explained in the previous section, they:  (i) must not initiate new operations other than those of the ordinary course of the company’s business and, (ii) must immediately convene the general assembly of shareholders or partners’ meeting to inform them of this situation and to let them adopt the decision to dissolve and liquidate the company or continue operating the business. This is because the ongoing business hypothesis allows the company´s associates to carry out an analysis of the company’s situation according to their own criteria and taking into account the company’s particularities, since it is not a strict and objective cause that necessarily results in dissolution. If the directors do not comply with these obligations, they will be jointly and severally liable for the damages caused to the associates or to third parties (Article 4, law 2069 of 2020).

5. Is this cause of dissolution in force?

In order to support companies and reduce the effects generated by COVID-19, this cause of dissolution was temporarily suspended. However, this period of temporary suspension expired on April 16, 2022 so that, from this date, it again came into force.

In case you have doubts regarding this or any other issue affecting your company, please contact us.

[1] Annex 5 of Decree 2420 of 2015.

[2] Opinion 220-047475 of 2021, Colombian Superintendence of Corporations.

What Are “Wage-Exclusion Agreements” and What Are Their Limits?

In accordance with article 127 of the Colombian Labor Code, anything workers receive as a direct compensation for the service they provide must be considered wages, regardless of whether it is paid in money or in-kind, or the type or name given to this payment. However, it is possible for employers to grant other occasional sums to workers in order to achieve the full performance of their duties, without seeking to grant benefits to workers or grow their wealth. Likewise, it is possible for the parties to expressly agree to grant certain benefits or aids to workers, either regularly or occasional, without these being considered as part of their salary, since these sums are not intended to remunerate the work they perform; this is known as a “Wage-Exclusion Agreement” and these payments may not exceed 40% of the total remuneration received by workers[1].

With respect to these agreements, the Colombian Supreme Court of Justice, in judgment SL5159-2018, and reiterated in judgment SL5146-2020, recalled that these can only apply to those payments that, despite not directly compensating work, in the absence of a previous wage-exclusion agreement, could generate discussions and confusion regarding their nature, that is, whether they constitute salary or not. Such is the case of extralegal bonuses for food, room or clothing, holidays or Christmas, among others. Thus, employers will have the burden of demonstrating that these payments, despite being regular and/or habitual, do not have the direct purpose of remunerating the services of workers or growing their wealth, but instead have a different objective, such as guaranteeing the fulfillment of tasks or covering certain needs. This is necessary because employers do not include these sums in the payment of social security contributions (pension, health, workers’ compensation administrators) or social benefits (legal bonuses, severance and its interests, legally mandated work uniforms), since the basis for calculating these payments is solely the sum that does constitute wages. Therefore, in the event that the existence of a duly executed wage-exclusion agreement cannot be proved, the employer will be obliged to pay workers, as compensation, a sum equal to the last daily wage for each day of delay in the payments of these sums (contributions and social benefits), in accordance with the provisions of article 65 of the Colombian Labor Code.

Consequently, on March 23, the Colombian Supreme Court of Justice analyzed an appeal against a judgment that declared two (2) companies jointly and severally liable, for an ineffective wage-exclusion agreement. In this regard, the Court argued that even though the worker freely agreed to execute this agreement, it is not possible to exclude from her salary any amount that, by its nature, essence and purpose constitutes salary, more so if the employer cannot demonstrate that these payments do not have the purpose of remunerating the services of the worker. In other words, the employer, through a wage-exclusion agreement, wanted to exclude sums that were constitutive of salary since they compensated the work performed by the worker. Additionally, the Court recalled that, in these cases workers must file their claim within 24 months following the termination of the labor agreement. Otherwise, workers are no entitled to the compensation established in article 65 of the Colombian Labor but only default interest accrued from the termination of the contract.

For the specific case, the worker had worked with a company for 13 years under an open-ended labor contract, after which she was notified that the employer would be replaced by another company. However, before this replacement was made, the worker executed an additional clause to the contract through which she would be granted a monthly remuneration plus a “non-salary benefit” that would not be included in the basis for calculating social benefits and contributions to the social security system. This clause, despite the employer substitution, was in force until the moment of termination of the contract. In this regard, the Court recalled that article 69, paragraph 1, of the Colombian Labor Code establishes that previous and current employers are jointly and severally liable for any obligations that at the date of substitution are enforceable against the previous employer. It is for this reason that the determination made by the court of appeals to declare both companies jointly and severally liable and order them to pay the sums owed along with the default interest, was correct, which is why the Court decided to confirm the ruling.

At BéndiksenLaw we can help you draft, review and modify the employment contracts of your workers to ensure full compliance with the regulatory provisions on labor matters. We can also settle any of your doubts regarding this or any other labor issue. Contact us.

[1] Council of State, Fourth Section, File No. 05001-23-33-000-2016-02496-01(25185) of December 9, 2021, C.P. Dr. Milton Chaves García.