Corporate Governance / Published legislation and draft legislation

Instructions on the right of inspection

CE-100-000001

The Companies Supervisory Authority (Supersociedades), the institution responsible for inspecting, supervising and monitoring for-profit companies in Colombia, has re-issued the Basic Legal Circular, registered as External Circular 100-000001/21st March 2017, which brings together in one document the principal general instructions issued by this body on legal matters.

For the re-issue, Supersociedades has modified the instructions regarding the right of inspection, referring to the prerogative that each associate has to examine, either directly or on behalf of a party authorised for this purpose, a company’s books and papers, with the intent of clarifying their administrative, legal, financial and accounting status. This right carries the correlative obligation on directors to hand over the information mentioned above; and is a keystone of corporate governance.

These instructions do not introduce a new regime; rather, they extend the scope of the legal provisions in Colombia around the right of inspection *.

With regard to the opportunity to exercise the right of inspection, the new instructions indicate that although this is one of the associates’ essential and therefore irrevocable rights, it is not for that reason an absolute right over companies. The Companies Supervisory Authority has clarified that the right of inspection is limited by law, as to its scope in terms of both time and reach.

Supersociedades has clarified that the right of inspection may be exercised at any time in the event of i) general partnerships, ii) limited partnerships, and iii) limited companies. In the case of public limited companies, the right of inspection may be exercised during the fifteen (15) working days prior to the Annual General Meetings at which the balance sheets are going to be considered. Finally, in the case of simplified limited companies, this same right of inspection may be exercised during the five (5) working days before the meeting at which the end of year balance sheets are due to be approved, unless the company’s articles of association specify a longer period.

As to where this right is to be exercised, Supersociedades has reiterated that the inspection may take place at the company’s headquarters. Stakeholders must review the company’s documents on site, and these may not be removed from the company’s premises.

There are restrictions over the right of inspection in terms of the content of the information requested. Documents about industrial secrets may not be required, nor information that, if disseminated, can be used against the company. Likewise, the stakeholders’ obligation to respect the confidentiality of company information has been reiterated.

Finally, Supersociedades repeats the warning that any company director impeding stakeholders from exercising their right of inspection is not only failing in their duties but will incur cause for removal from their position.

 

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* The legal provisions in Colombia regulating the right of inspection are: Code of Commerce (Decree 410/1971); Law 222/1995 and Law 1258/2008.