The Superintendence of Companies imposes a fine of COP $400,000,000 for failing to implement the PTEE

What were the reasons considered for imposing this sanction?

In the present case, the Superintendence of Companies formulated four charges against the Company, alleging that it:

1. Did not consider the procedures indicated by the Basic Legal Circular for the design and approval of the PTEE which, moreover, had been structured based on a repealed norm and was approved by the highest social body belatedly.
2. Did not include periodic due diligence procedures focused exclusively on the identification and evaluation of Transnational Corruption and Bribery (TCB).
3. Did not identify, evaluate, and control the TCB risk in the terms indicated by the norm. A global risk matrix was used for the business group, which did not accurately align with the specific economic activity of the company.
4. Did not comply with the minimum requirements for the appointment of the Compliance Officer by appointing the Internal Control and Audit Manager to such a position, constituting a conflict of interest, and affecting the necessary independence for the performance of this role.

What are the guidelines that the sanctioned company should have followed to implement a PTEE correctly?

The general guidelines for the creation of a PTEE are detailed in Chapter XIII of the Basic Circular of the Superintendence of Companies. In the specific case, the Superintendence of Companies emphasizes that, when designing, approving, and implementing a PTEE, it is crucial to strictly comply with what is established in numeral 5.1 and following of that Circular, among which are the following guidelines:

1. Keep in mind that the deadline to adopt the PTEE is May 31 of the following year in which the Company met the requirements to be a obligated entity. By this date, approval of the program by the highest social body must also be obtained.
2. Assign the responsibilities attributed to the Administrators and the Compliance Officer for the design, implementation, and operation of the PTEE.
3. Include, at a minimum, the stages and procedures for identification, monitoring, evaluation, and control of TCB risks.
4. Carry out a diligence process regularly through the periodic review of legal, accounting, or financial aspects, which is properly structured in accordance with the policy established by the Company to identify and assess TCB risks.
5. Develop methodologies and use a risk matrix adjusted to the specific economic activity of each company.
6. It is essential that the Compliance Officer maintain impartiality and not assume responsibilities that may affect their ability to supervise and ensure rigorous compliance with their function.

What sanctions can be imposed for failing to implement a PTEE in accordance with what is established in Circular XIII of the Basic Circular?

The Superintendence of Companies may impose, for each charge formulated, sanctions or fines, successive or not, of up to two hundred (200) legal monthly minimum wages on those who fail to comply with the obligation to implement the PTEE in accordance with current regulations. This is without prejudice to the actions that correspond to other authorities.

In the case under analysis, the Superintendence reduced the applicable sanction considering that:

1. Although it was done outside the established legal deadline, the Company updated and approved a PTEE in an Extraordinary Shareholders' Meeting.
2. Following an administrative visit by the Superintendence of Companies, the Company adjusted the due diligence to identify and address the involvement of its counterparts, with the aim of mitigating TCB risks.
3. The Company provided a risk matrix in compliance with the stages indicated in numerals 5.2.1, 5.2.2, 5.2.3, and 5.2.4 of Chapter XIII of the Basic Legal Circular.
4. The conflict of interest caused by the designation of the Compliance Officer role to a person holding an administrative position was corrected by appointing a new person who did meet the requirements established by the norm.
5. It was determined that there was no economic benefit or recurrence in the commission of the infraction.

How can we help you?

At Mazars, we have professionals who are experts in compliance with each of these obligations. If you require support in the implementation or fulfillment of the obligations contained in this newsletter, please contact us, and we will be happy to analyze the best way to support you in your compliance.