Control Situation and Business Groups in Non-Profit Organizations (ESALES)

In Official Opinion No. 220-053568 dated June 19, 2025, the Superintendence of Companies clarified how situations of control and business groups operate when the controlling party is a Non-Profit Organization (Entidad Sin Ánimo de Lucro – ESAL), such as a foundation, association, or corporation.

This clarification is particularly relevant for governance structures where non-profit entities participate in or exercise control over commercial companies or other private-law legal entities.

Key Clarification by the Superintendence of Companies

According to the opinion, an ESAL may act as a controlling party (parent) of a company or other private-law legal entity. However, it may not be a controlled entity or subsidiary.

The Superintendence emphasized that subordination applies exclusively to commercial companies, which means that ESALs cannot be considered subordinate entities under Colombian corporate law.

Obligations When a Situation of Control Exists

When a situation of control arises, the controlling party—whether a natural or legal person, Colombian or foreign, including an ESAL—must:

• Register the control situation with the Chamber of Commerce

• Do so for each controlled entity

• Complete the registration within thirty (30) days following the configuration of control

The registration must be made through a private document indicating:

• The related parties

• Their domiciles and nationalities

• Their business activity

• The grounds on which the control exists

Failure to comply may result in the Superintendence ordering the registration and imposing fines.

Specific Considerations When the Controller Is an ESAL

When an ESAL acts as the controlling party:

• The registration document must be recorded in the ESAL’s registration file at the Chamber of Commerce of the subsidiary’s domicile.

This ensures transparency regarding the governance structure and the exercise of control.

Control Situation vs. Business Group

A situation of control is not the same as a business group.

If the requirements set forth in Article 28 of Law 222 of 1995 are met—namely, the existence of control plus unity of purpose and direction—the ESAL, as controlling entity, must register both:

• The situation of control, and

• The business group

This registration must be made in the Commercial Registry.

Conclusion

This opinion reinforces the importance of properly identifying and registering control relationships involving non-profit organizations. ESALs may play a significant role in corporate structures, but they must comply strictly with registration and disclosure obligations to avoid sanctions.

Specialized legal advice is key to ensuring compliance and proper governance in these structures.

WRITTEN BY: NICOLÁS VARGAS

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