In Colombian public limited companies and simplified joint stock companies, inspection rights are subject to a series of rules regarding the documents and content that can be inspected. We recommend preparing regulations setting out how shareholders can exercise their rights in these cases. To that end, key points to be borne in mind are set out below.
The rules on shareholder inspection rights are as follows:
- Company management should not, and cannot, disclose to shareholders information containing trade secrets or information that can be used against the company (article 48 of Law 222 of 1995).
- Shareholders’ inspection rights are limited to a review of those documents that, pursuant to article 446 of the Commercial Code, must be presented to the shareholders’ meeting (listed below). Shareholders are not entitled to request information or documentation other than that listed, and management is not required to provide such information. We recommend that the forms for requesting information or documents explicitly and succinctly state the relevance thereof for the purposes of exercising inspection rights:
- Detailed income statement for the financial year, indicating amortization and depreciation charges;
- Planned distribution of distributable profit, indicating the deduction for income and other taxes for the year;
- The board of directors’ report on the company’s economic and financial position, including accounting information and statistical data, namely: (i) details of outflows for salaries, fees, per diems, representation expenses and any other payments made to company directors; (ii) payments made to company advisors and managers, but only for those whose function is to “process matters before public or private entities or to advise or prepare studies for supporting such procedures” (article 446.b of the Commercial Code); (iii) transfers of funds for no consideration; (iv) advertising and public relations expenses; (v) funds the company holds abroad and liabilities in foreign currency; and (vi) the company’s investments in other companies;
- Management report by the legal representative; and
- Auditor’s report.
- Inspection rights are limited to the accounting year of the financial statements to be approved at the shareholders’ meeting.
- Shareholders and their representatives may not remove documents from the corporate office.
- Company management is not required to provide copies of documents or to allow shareholders to photograph them or to reproduce them in any other way. Nevertheless, copying of the documents may be allowed, although this exposes shareholders and their representatives to a high level of liability for unauthorized use of the documentation. We recommend always limiting the right to make copies or take photographs of documents.
- Neither the purpose nor the intention of shareholder inspection rights is to perform a complete audit. The normal course of business of the company cannot be hindered under the pretext of exercising inspection rights. We recommend implementing a procedure for requesting documents and information, indicating prudent and reasonable time frames for preparing and delivering the material.
- Inspection rights are not applicable at shareholders’ meetings assembled on second call.
- At unanimous-consent shareholders’ meetings held without prior call, inspection rights are understood to be tacitly waived.
- Inspection rights apply at meetings called by the shareholders themselves.
Lastly, it could be helpful to reproduce the relevant text of Basic Legal Circular 100-000005 of 2017 issued by the Colombian companies’ supervisor (Superintendencia de Sociedades) (section VI a):
“(...) Shareholders have the right to access all documents envisaged in article 446 of the Commercial Code, as well as the books and other records required by law (article 447 of the Commercial Code), so that they may have sufficient and adequate documentary information on the economic performance of the company with a view to ensuring their active participation in the shareholders’ meeting and so they may cast informed and knowledgeable votes on the different matters placed before them in respect of these issues.
In light of the foregoing, for the purposes of exercising inspection rights, prior to the ordinary meeting of the highest corporate body, shareholders cannot request access to documents other than those indicated in articles 379 and 446 of the Commercial Code, such as commercial contracts, employment contracts, company budgets, etc., inasmuch as this possibility is not envisaged by law.
In this context, lawmakers have clearly and specifically stated which documents must be made available for examination in connection with shareholder inspection rights. Accordingly, it can be deduced that not all documents related with the business and operations must be made available to shareholders of a public limited company, but rather the general balance for the business along with those listed in article 446 of the Commercial Code and the books and other corresponding records.
Consequently, management of a public limited company is not required to make available to shareholders specific documents that are not envisaged in articles 446 and 447 of the Commercial Code. With respect to specific operations performed in the ordinary course of business, shareholders need only be sufficiently informed about management and the economic performance of the company and have sufficient knowledge in order to actively participate in the meeting of the highest corporate body with respect to these issues. (…)”.