Currently, the discipline of law cannot be separated from the international sphere; on the contrary, it is essential to promote the continuous and evolutionary development of legal figures that have emerged due to globalization. In this sense, the incorporation of the concepts of control situation and business group grants entrepreneurs the possibility of expanding nationally and internationally.
In order to address both concepts, it must first be borne in mind what each one means. Therefore, reference is made to Article 28 of Law 222 of 1995, which establishes: “There is a business group when, in addition to the subordination link, there is unity of purpose and direction among the entities.”
Based on the above definition, a business group is understood as that conglomerate of companies or enterprises that have joint shareholding participation, generating unanimity of purpose and direction, that is, their orientation is linked to policies, financial or administrative operations, and projects that must be jointly fulfilled under a specific objective, according to the parameters indicated by the parent company.
On the other hand, the control situation is that legal figure whose essential element is based on the power of decision-making that is granted, that is, there is a legal entity that has a shareholding participation that confers control or a dominant position in decision-making over the companies that are subordinate or controlled.
Thus, a presumption of subordination arises:
- When the parent company holds 50% directly or indirectly of the subscribed capital, although shares with preferential dividends and without voting rights are excluded from this percentage.
- When the parent company has the necessary quorum for decision-making in the partners' meeting or the shareholders' assembly, or has the necessary number of votes to elect the majority of the members of the board of directors.
- When a dominant influence is generated in the decision-making of the company's administrative bodies, whether directly or indirectly.
Based on both definitions, their main difference stems from the purpose of unity of purpose and direction, as it is the main characteristic that generates the interdependence that characterizes the business group, unlike the control situation, which does not imply that such element exists in its subordination. Consequently, both legal figures generate benefits and obligations for the companies that make up the control situation or the business group, depending on the purpose for which either of the two legal figures is constituted. However, it is noted that their main obligation lies in the registration in the commercial registry, where the related parties that are linked to the subordination of the parent company must be established.