Superintendency of Companies updating the guidelines for the implementation of the Business Ethics Programs

• “The Supervised Companies that (i) as of December 31 of the immediately preceding year have carried out International Business or Transactions of any nature, directly or through an intermediary, Contractor or through a Subordinate Company or a branch, with natural persons or foreign legal entities under public or private law, equal to or greater (individually or jointly) than one hundred (100) SMMLV; and (ii) as of December 31 of the immediately preceding year, they have obtained Total Income or have Total Assets equal to or greater than thirty thousand (30,000) SMMLV, they must comply with the provisions of paragraph 5 of this Chapter. The Supervised Companies that are obliged to comply with the requirements mentioned in this numeral, will be obliged to identify and evaluate the Risks of Transnational Bribery. “
• “Companies that (i) as of December 31 of the immediately preceding year, directly or indirectly (through consortia, temporary unions or any other figure permitted by law), have entered into contracts with State Entities with an amount equal to or greater ( individually or jointly) to five hundred (500) SMMLV; and (ii) as of December 31 of the immediately preceding year, they have obtained Total Income or have Total Assets equal to or greater than thirty thousand (30,000) SMMLV, they must comply with the provisions of paragraph 5 of this Chapter. The Supervised Entities that are obliged to comply with the requirements of this paragraph, will be obliged to identify and evaluate the Risks of Corruption “
• “Companies that (i) as of December 31 of the immediately preceding year, directly or indirectly (through consortia, temporary unions or any other figure permitted by law), have entered into contracts with State Entities with an amount equal to or greater ( individually or jointly) to five hundred (500) SMMLV; and (ii) that they belong to any of the sectors indicated below, as long as they comply with all the requirements indicated for the respective sector. The Supervised Entities that are obliged to comply with the requirements of this numeral, will only be obliged to identify and evaluate the Risks of Corruption.

Likewise, in order to classify a company as an obligated entity, criteria and thresholds of specific assets or income were taken into consideration with respect to companies supervised in the sector: (i) pharmaceutical; (ii) infrastructure and construction; (iii) manufacturing; (iv) mining and energy; (v) information and communication technologies; (vi) trade in vehicles and (vii) auxiliary financial services activities. The companies belonging to the aforementioned sectors will be entities obliged to implement a PTEE depending on whether or not they meet the requirements indicated for each of them in the External Circular, for which it will be necessary to carry out a case-by-case analysis.

2. About business ethics and transparency plans

Regarding the PTEE, the External Circular emphasized its role as a fundamental tool for obliged companies to reduce as much as possible and correct the risks and contingencies of the commission of potentially corrupt practices within organizations. Thus, this instrument must collect and compile all corporate governance guidelines aimed at the prevention of corruption and transnational bribery, as well as the principles and values of the organization with a view to the execution of business activity in a transparent manner. Under this logic, the External Circular determined that a PTEE must, among others:

(i) Contain the identification and assessment of the risk of corruption and transnational bribery.
(ii) Regulate the management, limits and procedures of the delivery of gifts or offers to third parties.
(iii) Establish the specific duties of employees exposed to risk and assignment of responsibilities.
(iv) Implement control and auditing systems to monitor the transactions carried out by the company.
(v) Establish labor or disciplinary sanctions for employees and managers who contravene the PTEE and the anti-corruption regulations.
(vi) Be updated at least every 2 years, or on each occasion that there is a change in the activity of the obligated company that implies an alteration to the risk of corruption and / or transnational bribery.
(vii) In the event of transnational bribery, the PTEE must be translated into official languages other than Spanish of the countries where the company carries out international business or transactions, regardless of whether these are carried out through companies. subordinates, branches or other establishments, or through contractors in other jurisdictions.
(i) Contain the identification and assessment of the risk of corruption and transnational bribery.
(ii) Regulate the management, limits and procedures of the delivery of gifts or offers to third parties.
(iii) Establish the specific duties of employees exposed to risk and assignment of responsibilities.
(iv) Implement control and auditing systems to monitor the transactions carried out by the company.
(v) Establish labor or disciplinary sanctions for employees and managers who contravene the PTEE and the anti-corruption regulations.
(vi) Be updated at least every 2 years, or on each occasion that there is a change in the activity of the obligated company that implies an alteration to the risk of corruption and / or transnational bribery.
Likewise, the External Circular highlights the need for communication, dissemination and training of the PTEE and the anti-corruption regulations in accordance with the risk factors identified and established by the company. In this regard, it will be verified that the disclosure plans: (i) establish in detail and expressly the responsibility and obligations of administrators and employees; (ii) PTEE procedures regarding financial controls and confidential reporting protocols; (iii) the sanctions; (iv) publication on physical or virtual media; (iv) the translation of the forms of dissemination and training into languages with respect to countries where the company operates and whose official language is not Spanish (regarding transnational bribery); and (vi) creation of awareness and organizational culture regarding the importance of preventing and mitigating the risk of corrupt conduct or transnational bribery, among others.

3. Implementation period

Finally, the SuperSociedades indicated that the supervised entities must verify whether or not they meet the criteria to be entities obliged to implement a PTEE as of December 31 of the previous year, compared to which they will have until May 31 of the following year. to certify the implementation. Taking into account the above, the obligation to notify the SuperSociedades of the condition of obligated entity was established within 15 business days of the expiration of the obligation to implement the PTEE, that is, 15 business days after May 31 of the year following the compliance with the criteria to be considered an obligated entity. 

In this order of ideas, and taking into account that the External Circular will enter into force as of January 1, 2022, any company that meets the criteria to be considered as an entity required to implement a PTEE as of December 31, 2021, will have until May 31, 2022 for the implementation of the respective PTEE, and must notify the SuperSociedades of its status as an obligated entity within 15 business days following the 31st of May 2022.No dude en contactar a Jorge Castaño 

jcastano@brickabogados.com or Nicolás Castillo ncastillo@brickabogados.com if you have any concerns or if you wish to expand on the aforementioned subject.

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This document has been prepared by Brick Abogados especially for its clients, for informational purposes only, therefore it is not considered as legal assistance or recommendation.