finds the explanations of the companies
to be acceptable, they will be relieved
of the duty to inform the general public
through the Commercial Registry, the
existence of the control and/or group
situations. Failure to fulfill the obligation
of declaring the existence of control and/
or group situations results in fines
49,300 approximately.
According to local provision, the
following are the effects of the recognition,
voluntary or declaration, by the
Corporation superintendence, of a control
situation.
The effects of the situation of control,
according to law 222 of 1995, are:
control in the trade registry;
statements;
of capitals between parent companies
and subordinates.
companies: this extension of liability
is given in a subsidiary manner, when
the following two scenarios occur: (i)
in the cases of participation of the
subordinated company and (ii) liability
on the hypothesis of mandatory
liquidation of the subordinated
company, when fraud by the parent
company is verified.
group provisions in 1995, one of the
biggest changes of Colombian legislation
occurred in 2008, when the Congress
issued law 1258 of 2008, which created
the so-called "Sociedades por Acciones
Simplificadas" or S.A.S. As happened
with law 222 of 1995, this new provision
represented another step forward in
updating the Colombian legal system
regarding corporate law rules. For the
first time in history, it was possible
to incorporate sole shareholders
corporations. The importance of the new
rules can be measured if we consider that
after one year of the existence of the law,
the following years, until 2012, 160.000
S.A.S. was incorporated.
incorporating an S.A.S. with a sole
shareholder, there are other benefits for its
use, such as:
contained in a private document; for
other kinds of corporations it must be
contained in a public deed;
of directors; for other kinds of
corporations it is mandatory to have a
board of directors;
contained in a private document;
appoint an statutory auditor for the
companies;
advantages of the S.A.S., considering
its advantages, the S.A.S. has been
fundamental to the efforts of local
government to eradicate, if possible,
informality within the local economy.
Now, due to the indiscriminate use
of this kind of corporation, new issues
have arisen, especially in matters related
to shareholders liability related to
activities performed through an S.A.S.
Although not initially considered, the
regulation of control and groups is at the
center of the stage of the Corporations
Superintendence. Recent decisions of the
control organism show how the already
explained regime allows that organism
to define boundaries in this regard
using control provisions to understand,
completely, the corporate situation of a
group of corporations.
In this regard, once law 1258 was
issued no questions were asked about the
application of control regulations to the
S.A.S., considering that the latest was
created, precisely, as a flexible and simple
tool to fight against informality allowing
entrepreneurs to incorporate corporations
in an easy way. In this sense, arguably for
a sector of lawyers and authorities, the
application of the provisions contained in
law 222 of 1995 will affect entrepreneurs
all the duties already explained, making
the use of this kind of corporations
much less attractive, because it implies
loosing flexibility. Although attractive,
this argument was not considered for the
Corporate Superintendence in the analysis
of specific cases.
In effect, after a deep study, the
Corporate Superintendence found that
all the duties applicable to controller
companies where there is a plural number
of shareholders, are also applicable
to sole shareholders in the S.A.S. for
two main reasons: (i) they represent
a mechanism to really understand
the dynamics of a related group of
corporations; and (ii) there is no legal
exception to the applicability of the law
222 of 1995 provisions.
issued before the one by which the S.A.S.
appeared; what is really important is if it
is possible to verify the existence of one of
the presumptions already explained.
The content of the latest decisions
of the Corporations Superintendence
open a new chapter not only for the sole
shareholders, but also for the Corporations
Superintendence. The former now have
to bear in mind the new duties they must
comply with, while the later must find a
proper and efficient way to enforce the
already explained provisions, without
affecting the process of formalization of
the economy that already begun.
Primera. Consejera ponente: Olga Inés Navarrete
Barrero. Sentencia del 17 de mayo de 2002, radicado:
25000-23-24-000-2001-0388-01(7342), and the
Constitutional Court, Sentencia C 510 de 1997;
3 REYES VILLAMIZAR, Francisco, derecho societario,
5 Article 30 of the law 222 of 1995;
6 Article 35 of the law 222 of 1995;
7 Article 32 of the law 22 of 1995
8 Article 61 of the law 1116 of 2006
9 http://www.portafolio.co/negocios/empresas/colombia-
of July of 2016