Following the signing of several conventions to combat transnational and national corruption, Colombia has issued various laws and, through the Superintendence of Companies, circulars aimed at establishing the legal framework to manage and apply the conventions intended to prevent corruption, and in the event that it occurs, to sanction under different proceedings those who violate such regulations.
Therefore, under Law 1474 of 2011, Law 1778 of 2016, Decree 1736 of 2020, Circular 100-0000011 of 2021, and Circular 100-0000012 of 2021, the conventions against corruption are implemented in Colombia. Through the Superintendence of Companies, companies from all sectors of the economy that meet the requirements are obliged to implement the Business Transparency and Ethics Program (PTEE):
Private companies that have carried out international transactions by themselves or through third parties, for more than 100 SMMLV, as well as companies that, as of December 31, 2021, have had total revenues or have total assets exceeding 30,000 SMMLV.
Companies, consortia, or temporary unions that have or have entered into contracts with state entities for more than 500 SMMLV.
The foregoing are general requirements that establish a basic limit on the mandatory nature of implementing or not the Business Transparency and Ethics Program (PTEE). In turn, Circular 100-0000011 of 2021 imposes additional requirements and a special requirement according to each sector of the economy, understanding that if a given company does not carry out activities in the pharmaceutical, infrastructure and construction, manufacturing, mining, energy, information and communication technologies, vehicle trade, parts, pieces and accessories, or financial services auxiliary sectors, it will be subject to the general requirement mentioned above, and in the event that the company does belong to the aforementioned sectors, it will be obliged to implement the PTEE if, as of December 31 of the previous year, they had revenues of more than 3,000 SMMLV or have assets exceeding 5,000 SMMLV.
Now then, once the company meets the aforementioned requirements, it must begin with the preparation and implementation of the PTEE, which will have a term until May 31, 2022 for its complete adoption, and once implemented, it must update its PTEE at most every two years counted from the date of its adoption.
For the implementation of this business transparency and ethics program, the following documents must be developed, which must contain at least the elements and characteristics determined in Circular 100-0000011 of 2021:
Corruption and Transnational Bribery Risk Matrix (C/ST).
Travel and Per Diem Policy.
Profile of the Compliance Officer position.
Profile of the natural or legal person designated as Compliance Officer.
Procurement Policy.
Policy on Benefits to Third Parties, Donations, and Gifts.
Policy on Entertainment Expenses within Companies.
Policy on Donations to Political Campaigns.
Constant Audit of Accounting Activities and Positions Exposed to C/ST Risk.
Sanctioning Processes in both the Labor and Commercial Spheres.
Creation of Channels for Receiving Confidential and Secure Reports on C/ST Risk.
Socialization and Training on the Program, as well as its Sanctions, through the Most Expeditious Means.
Likewise, obligated companies must designate a natural person to carry out the procedures of presenting the PTEE, as well as its update, and to render reports on the implementation and actions of C/ST, who will be called the Compliance Officer, who must meet the following requirements:
Have prior knowledge about C/ST risk
Have a human and technical work team according to the obligated company
Not be a statutory auditor, administrator, shareholder, or member of the board of directors.
Not serve as principal or alternate compliance officer in more than 10 companies, nor hold the same position in competing companies
Be domiciled in Colombia.
Therefore, companies obligated to have a PTEE must take into account all these requirements, and those found in the regulations detailed above, allowing them to comply with and manage C/ST risk, and not least, those companies that do not comply with these directives may be sanctioned by the Superintendence of Companies, as well as sanctioning their Compliance Officer, statutory auditor, or administrators, in accordance with the provisions of numeral 3 of Article 86 of Law 222 of 1995 and numeral 23 of Article 7 of Decree 1736 of 2020, without prejudice to the actions that correspond to other authorities, including criminal investigations, even before the Comptroller General's Office.
Thus, the directives issued by the Superintendence of Companies on the PTEE and Circular 100-0000011 of 2021, Circular 100-0000012 of 2021, must be adopted and implemented, mandatorily, by those companies that meet the aforementioned requirements, under penalty of incurring administrative sanctions by this entity. Therefore, it is important to begin identifying whether the company meets the requirements or not, and likewise begin with the preparation and implementation of the business transparency and ethics program, in order not only to comply with the law but also to have an upright company in the development of its daily activities.
Prepared by: Luis Carlos Ramirez Satizabal Consulting Attorney.