DAPRE pressured by compliance action to regulate the PTEE

Transparency and business ethics programs – PTEE

Law 2195 of 2022, which introduces measures for transparency, prevention, and the fight against corruption, establishes in Article 9 the obligation for companies subject to inspection, surveillance, or control by authorities to adopt Transparency and Business Ethics Programs (PTEE). Accordingly, the respective superintendencies or oversight authorities will determine the content of the Transparency and Business Ethics Programs, taking into account criteria such as the sector, its associated risks, asset amount, income, number of employees, and corporate purpose.

Furthermore, paragraph 2 of the mentioned article states that it is the duty of the superintendencies and other authorities of inspection, surveillance, and control, in coordination with DAPRE, to determine the minimum guidelines that the PTEE must include in order to standardize actions, policies, methods, procedures, mechanisms for prevention, control, evaluation, and continuous improvement.

This obligation entered into force on January 18, 2022, with the enactment of Law 2195 of 2022; however, to date, the regulation governing the PTEE has not been issued for certain sectors, such as the health sector, public utility services, non-profit organizations, among others.

First-Instance ruling

For the reasons stated above, NGO AFIPRO decided to file a compliance action, whose objective is to turn to the judicial authority to demand compliance with a duty arising from a law or administrative act.

This matter was heard in the first instance by the Administrative Court of Cundinamarca, which, by ruling dated February 5, 2025, upheld AFIPRO’s claims and consequently ordered DAPRE to comply with the unfulfilled provision within a term of four months, arguing that although DAPRE has taken steps to issue general guidelines for the regulation of the PTEE in unregulated sectors, the sectoral regulatory mandate enshrined in paragraph 2 of Article 9 of Law 2195 of 2022 has so far been omitted.

DAPRE, not in agreement with the decision, filed an appeal with the Council of State.

Second-instance ruling

The Council of State evaluated whether AFIPRO met the following requirements to file the compliance action:

• The duty requested to be enforced is stated in applicable legal norms or administrative acts.
• That said norm constitutes a mandatory and unquestionable obligation upon the authority.
•  That the claimant proves the unwillingness of the authority to comply with the duty.
• That there is no other judicial remedy to achieve compliance with the omitted duty, unless there is a serious and imminent harm to the claimant.

Once these requirements were reviewed, the Council of State determined that the claimant was able to prove the unwillingness of the respondent authority through a right of petition filed with the Transparency Secretariat of DAPRE on April 3, 2024.

Therefore, the Council of State confirmed the first-instance ruling and additionally ordered that the Superintendence of Public Utilities, the Superintendence of Companies, the Financial Superintendence of Colombia, the Superintendence of Industry and Commerce, the Superintendence of Transport, the National Superintendence of Health, the Superintendence of the Solidarity Economy, and the Superintendence of Private Security and Surveillance, as well as other authorities of inspection, surveillance, and control, within the framework of their legal and constitutional powers, provide the necessary collaboration for the issuance of the regulation requested in this matter.

Deadline to issue the regulation

Although it is not entirely clear from when the four-month term established in the first-instance ruling should be counted, under a reasonable interpretation, it could be understood that said term should begin from the notification of the second-instance ruling. In this case, that notification is estimated to have taken place on May 9, 2025, the date on which the ruling issued by the Council of State is considered to have been duly served, thus confirming the final decision.

Under this scenario, the superintendencies and other authorities of inspection, surveillance, and control of the Executive Branch, in coordination with DAPRE, would have a maximum term until September 9, 2025, to regulate the PTEE in those sectors that are still unregulated. However, since this is an interpretation, we recommend staying tuned to our upcoming bulletins, in which we will report any official statement that may clarify the timeline in question.

How can we help you?

At Forvis Mazars, we have a team of professionals with expertise in the design, implementation, execution, and monitoring of the elements and stages of the PTEE. If you require support for the implementation or compliance with the provisions mentioned in this bulletin, do not hesitate to contact us. We are here to support you in the proper implementation of the PTEE and ensure compliance with the applicable regulations.