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ESG Latin America & the Caribbean Guide 2024 | Charting Sustainable Futures

Colombia

(Latin America/Caribbean) Firm Brigard Urrutia

Contributors Elisa Medici
Juana Micán
Luis Morcillo
Catalina Santos
Daniela Caicedo
Alejandra Alvarez
Juan Manuel Pacheco
Viviana Araújo Angulo
Antonio Garlatti-Venturini
Andres Felipe Parra
Juan Camilo Pérez Jaramillo
Karol Natalia Rojas

Updated 22 May 2024
ESG Regulation related to climate change prevention or mitigation, specifically concerning carbon footprint or pollution measurement, decarbonization strategies, and/or mandates and strategies to achieve local carbon neutrality commitments

Laws/regulations concerning climate change prevention or mitigation include: 

  • State Law 2169 of 2021
    Promotes the country's low-carbon development through the establishment of minimum goals and measures for carbon neutrality and climate resilience
  • State CONPES 4021 of 2020
    National Policy for the control of deforestation and sustainable forest and sustainable management of forest

The scope of the application is State.

ESG Regulation regarding energy transition (requirements or promotion and use of new second-generation renewable energy sources such as solar, wind, tidal, H2, geothermal, among others).

Laws/regulations concerning energy transition include:

  • State Law 1955 of 2019
    This law is a national development policy. Particularly, it establishes the obligation for energy traders to obtain between 8% and 10% of their energy purchases from non-conventional renewable energy sources, through long-term contracts assigned in certain market mechanisms established by regulation.
  • State Public Energy Transition Policy CONPES 4075 of 2022
    The policy established four strategic lines of action to increase energy security; promote knowledge and innovation in energy transition; generate greater competitiveness and economic progress from the energy sector; and develop an energy system with low GHG emissions to reduce the impact of climate change
  • State Law 2111 of 2021
    Title XI "Crimes against natural resources and the environment" of Law 599 of 2000 is replaced, Law 906 of 2004 is amended and other provisions are enacted.
  • State Decree 570 of 2018
    Public policy guidelines are established for the long-term contracting of electric power generation projects from non-conventional renewable energy sources.
  • State Law 1715 of 2014
    The purpose of this law is to establish the legal framework and instruments to promote the use of non-conventional energy sources, mainly those of renewable nature, as well as to promote investment, research and development of clean technologies for energy production, energy efficiency and demand response, within the framework of the national energy policy. It also aims to establish lines of action for the fulfillment of commitments assumed by Colombia in terms of renewable energies, efficient energy management and reduction of greenhouse gas emissions.

The scope of the application is State.

ESG Regulation concerning electricity markets, carbon markets, or similar.

Laws/regulations concerning electricity markets, carbon markets, or similar include:

  • State Law 2099 of 2021
    Aims to modernize the regulation for the energy transition, the dynamization of the energy market through the use, development and promotion of non-conventional energy sources, the economic reactivation of the country and, in general, to dictate norms for the strengthening of the public utilities of electric power and fuel gas.

The scope of the application is State.

ESG Regulation in the realm of green or sustainable financing, including taxonomies, provisions for mandatory reporting of material financial information on environmental or social matters, as prerequisites for issuing thematic bonds (green, sustainable,

Laws/regulations in the realm of green or sustainable financing include:

  • External Circular No. 031 of 2021, which "Provides Instructions Regarding the Disclosure of Information on Social and Environmental Matters, Including Climate-related Issues"
    Guidelines on disclosing information related to social and environmental matters, including climate issues, from a financial materiality perspective, by adopting the international standards of the Task Force for Climate-Related Financial Disclosure ("TCFD") and the SASB Standards of the Value Reporting Foundation ("VRF").
  • External Circular 005 of 2022 - Green Taxonomy in Colombia
    Colombia's Green Taxonomy is a classification system for economic activities and assets with substantial contributions to the achievement of environmental objectives, aligning with the country's commitments, strategies, and policies in environmental matters.
  • External Circular 008 of 2022, which "Provides instructions related to the issuance of Sustainability-Linked Bonds," as they are globally known
    The purpose of standardizing the minimum information requirements for registration in the National Register of Securities and Issuers ("RNVE") is to define the content of the information prospectus for these financial instruments in accordance with international standards set by the International Capital Market Association ("ICMA").
  • External Circular 020 of 2022
    Provides instructions related to the issuance of bonds that contribute to the achievement of environmental, social, and/or orange economy objectives.
  • Technical Document No. 02 of 2022 "Guide for the Management of Financial Risks Associated with Climate Change for Credit Institutions."
    The Technical Document aims to provide clarity regarding the Financial Superintendency of Colombia's expectations concerning the management of financial risks related to climate change by supervised credit institutions and development banks. The document consists of five chapters:
    • definitions;
    • acronyms;
    • the impact of climate change and the exposure of the Colombian financial system;
    • objective, application, and scope; and
    • principles for the management of climate-related financial risks.

      The final chapter, as a set of principles, summarizes the Financial Superintendency's expectations in this regard.
  • "Towards the Greening of the Colombian Financial System"
    This Technical Document presents the Financial Superintendency of Colombia's Green Finance and Climate Change Strategy along with its roadmap. It outlines the defined objectives within the Strategy, highlights key milestones achieved to date, and outlines the steps to be taken in the coming years in Colombia.
  • External Circular 007 of 2021
    Instructions to supervised entities regarding investment and risk management processes, as well as processes related to:
    • the inclusion of Environmental, Social, and Corporate governance ("ESG") and climate factors as relevant risks for investment portfolios, and
    • their integration into investment decision-making processes.
  • Decree 2112 of 2019
    A special tax regime established by the National Government with the objective of attracting local and/or foreign investment, aiming to create employment opportunities in cities with high unemployment rates.
  • Decree 1625 of 2016
    By means of which a 25% discount on income tax is established for investments related to environmental control, conservation, and improvement.
  • Decree 1650 of 2017
    By which tax benefits are granted to companies that carry out their activities in the areas most affected by armed conflict in Colombia. This mechanism allows investors to offset up to 50% of income tax by investing in projects developed in areas most affected by violence and poverty.
  • Law 2234 of 2022
    By which the policy of social entrepreneurship is promoted

The scope of the application is State.

ESG Regulation for preventing greenwashing.

Not applicable.

Regulation on ESG Due Diligence applicable to value chains (MRV protocols to ensure the environmental integrity of products and services, etc.).

Laws/regulations concerning ESG Due Diligence applicable to value chains include:

  • State Law 1258 of 2008
    Prohibits the importation, manufacture, commercialization and use of food grade Potassium Bromate alone or in mixtures of additives containing it for food use or in the treatment of barley for the production of alcoholic beverages.
  • State | Law 222 of 1995
    The administrators of the company shall supervise and ensure compliance with the company's bylaws and regulations related to labor, tax, environmental, commercial, accounting, consumer protection, intellectual property, and antitrust laws, as well as any other legal obligations associated with the operation of the entity and its interactions with third parties.
  • State | Law 23 of 1973
    Responsibility in Environmental Risk Management, in accordance with Articles 16 and 17 of Law 23 of 1972, society is legally responsible for damages caused to the environment and for violating environmental regulations during the execution of its corporate purpose. However, it is the responsibility of the members and directors to implement the necessary internal policies. The aim of this is to prevent business activities from causing harm to the environment.
  • State | Pedagogical Guide for BIC Management Reporting
    BIC corporations must prepare an annual management report. This report should adhere to a recognized standard that is comprehensive, impartial, reliable, and transparent. The Superintendency of Corporations, through Resolution 2000-004394 issued in 2018, has introduced a series of five standards that companies can incorporate into their management reports.

The scope of the application is State.

Regulation in the field of circular economy.

Laws/regulations concerning the field of circular economy include:

  • National Green Business Plan
    The National Green Business Plan is an instrument for the development and positioning of goods and services that generate a positive environmental impact in Colombia. It is important to express our gratitude to the team at the Office of Green and Sustainable Business, which contributed to the new dimensions of green growth, with the aim of implementing actions that promote a new path of collective construction and the design of innovative proposals that address the needs of the environmental sector and the proposed narratives, under a horizontal implementation model and a much more comprehensive vision of the green economy.
  • National Policy for the Comprehensive Management of Biodiversity and Ecosystem Services (PNGIBSE in Spanish)
    State policy whose objective is to promote the Comprehensive Management of Biodiversity and Ecosystem Services (Gibse), in a way that maintains and enhances the resilience of socioecological systems at national, regional, local, and cross-border scales, considering scenarios of change and through joint, coordinated, and concerted action by the State, the productive sector, and civil society. This means that this PNGIBSE will frame and strategically guide all other environmental management instruments (policies, regulations, plans, programs, and projects), whether existing or developed, for the conservation of biodiversity at its various levels of organization, in addition to serving as a basis for intersectoral coordination and a fundamental part of the country's development.
  • Green Growth Policy CONPES 3934 of 2018
    In order to transition the country towards a more sustainable, competitive, and inclusive economic model, the Green Growth Policy for Colombia consists of five strategic pillars. The first pillar aims to create new economic opportunities that enable diversification of the economy through the production of goods and services based on the sustainable use of natural capital. The second pillar seeks to improve the use of natural resources in economic sectors to make them more efficient and productive while reducing and minimizing the environmental and social impacts generated by productive activities.
  • National Policy on Production and Consumption: Towards a Culture of Sustainable Consumption and Productive Transformation
    The National Policy on Cleaner Production and the National Green Markets Plan, as strategies of the Colombian State, promote and connect environmental improvement with entrepreneurial competitiveness. This introduction to the Sustainable Production and Consumption Policy outlines its context and the challenges of its implementation. Additionally, lessons learned from previous experiences in cleaner production and sustainable consumption complement the guidelines that steer the development of this policy.

The scope of the application is State.

ESG Regulation related to stakeholder well-being and social impact.

Laws/regulations concerning stakeholder well-being and social impact include:

  • Law 2234 of 2022 
    By which the policy of social entrepreneurship is promoted.

The scope of the application is State.

ESG Regulation concerning non-discrimination.

Laws/regulations concerning non-discrimination include:

  • Law 1482 of 2014
    Criminalizes acts of discrimination based on race, ethnicity, religion, nationality, political or philosophical ideology, sex or sexual orientation, disability and other discriminatory grounds.
  • Law 1618 of 2013
    Guarantees and ensures the effective exercise of the rights of persons with disabilities, by adopting measures of inclusion, affirmative action and reasonable accommodation and eliminating all forms of discrimination based on disability. Society, and particularly companies, must ensure that the rights of persons with disabilities are respected and guaranteed.
  • Law 361 of 1997
    Establishes rules for the protection of persons with disabilities and their inclusion in society, promoting non-discrimination and equal opportunities. This norm expressly states the non-discrimination of persons with disabilities, and the impossibility of dismissal without just cause, without the permission of the Ministry of Labor, granting persons with disabilities a reinforced labor stability.
  • Decree 929 of 2023
    The decree establishes policies and guidelines to promote efficiency in the energy sector and citizen participation.

The scope of the application is State.

ESG Regulation pertaining to the prevention of modern slavery.

Not applicable.

ESG Regulation regarding Diversity, Equity, and Inclusion - DEI.

Laws/regulations concerning DE&I include:

  • Law 1996 of 2019
    All persons with disabilities are subjects of rights and obligations, and have legal capacity under equal conditions, without any distinction whatsoever. This presumption shall also apply to the exercise of the labor rights of persons with disabilities, protecting their employment and labor inclusion.
  • Law 1257 of 2008
    This standard includes among the obligations of society, including companies, to take an active part in achieving the elimination of violence and discrimination against women. 1. Know, respect and promote women's rights. 2. Refrain from any act or conduct involving physical, sexual, psychological or property abuse against women. 3. Refrain from any act or conduct involving discrimination against women. 4. To carry out all actions necessary to ensure the exercise of women's rights and eliminate violence and discrimination against them.
  • Political Constitution of Colombia
    Equality is a fundamental right enshrined in the Political Constitution of Colombia. Therefore, people shall receive the same protection and treatment from the authorities and shall enjoy the same rights, freedoms and opportunities without any discrimination based on sex, race, national or family origin, language, religion, political or philosophical opinion.
  • Decree 1650 of 2017
    By which tax benefits are granted to companies that carry out their activities in the areas most affected by armed conflict in Colombia. This mechanism allows investors to offset up to 50% of income tax by investing in projects developed in areas most affected by violence and poverty.
  • Law 1857 of 2017
    This norm contemplates measures for the protection of the family. Employers may adapt the working hours to facilitate the approach of the worker with the members of his family, to attend his duties of protection and accompaniment of his spouse or permanent partner, his minor children, the elderly people of his family group or his relatives within the 3rd degree of consanguinity who require the same; as well as those of his family who are in a situation of disability or dependency. Likewise, the employee and the employer may agree on flexible working hours and working conditions to facilitate the fulfillment of family duties.
  • Law 1496 of 2011
    Guarantees the equality of salaries and any form of labor remuneration between women and men, and establishes the mechanisms that allow such equality to be real and effective. This norm establishes the wage valuation factors, which are mandatory for the employer in salary matters as follows: a) nature of the activity to be performed, b) access to professional training means, c) conditions for admission to employment, d) working conditions, e) equal opportunities and treatment in employment and occupation, in order to eliminate any discrimination, and e) other salary complements.

The scope of the application is State.

Regulation on ESG-linked compensation.

Laws/regulations concerning ESG-linked compensation include:

  • Decree 392 of 2018
    Incentives to companies that submit bids for public tenders and prove that they have workers with disabilities on their staff.

The scope of the application is State.

ESG Regulation for the protection of vulnerable or minority communities.

Laws/regulations concerning the protection of vulnerable or minority communities include:

  • Law 18 of 1990
    Prohibits the manufacture, importation, distribution, sale, and use of war toys in the national territory, adds Law 42 of 1985 and establishes other provisions.
  • Law 1796 of 2018
    This regulation lists dangerous activities that by their nature or working conditions are harmful to the health and physical or psychological integrity of minors under 18 years of age. Additionally, it establishes that adolescents between 15 and less than 18 years of age must have the respective authorization issued by the Labor Inspector in order to work.
  • Law 1335 of 2009
    Provisions through which damage to the health of minors and the non-smoking population is prevented and public policies are stipulated for the prevention of tobacco consumption and the abandonment of tobacco dependence of smokers and its derivatives in the Colombian population
  • Colombian Labor Code
    The law establishes the minimum working age. Thus, minors under fourteen (14) years of age may not work in industrial enterprises, or agricultural enterprises when their work therein prevents them from attending school. Minors under eighteen (18) years of age may not work at night, except in non-industrial enterprises and domestic service and provided that the work is not dangerous to their health or morality. Minors under eighteen (18) years of age may not work as drapers or stokers in maritime transport vessels. Every employer must keep a registration record of all persons under eighteen (18) years of age employed by him, in which the date of birth of the same shall be indicated.

The scope of the application is State.

ESG Regulation for economic development of vulnerable or minority communities or groups.

Not applicable.

Regulation on Personal Data Protection, concerning data usage transparency, limits on data usage to prevent discrimination issues, and corporate digital responsibility.

Laws/regulations concerning Personal Data Protection include:

  • Law 1581 of 2012
    Develops the constitutional right to know, update and rectify the information that has been collected about them in databases or files, and the other rights, freedoms and constitutional guarantees of Article 15 of the Political Constitution; as well as the right to information established in Article 20 of the same.
  • Decree 1074 of 2015 Trade, Industry and Tourism Sector
    Regulates the Regulatory Decree of the Commerce, Industry and Tourism Sector. It partially regulates Law 1581 of 2012, from article 2.2.2.2.25.1.1. to article 2.2.2.2.26.3.4. It includes rules on the authorization for the processing of personal data, rules on information processing policies, the exercise of rights of the holders of information, and demonstrated responsibility for the processing of personal data.
  • Guidance for the Implementation of the Principle of Accountability
    Defines the concept of demonstrated responsibility applied to the processing of personal data, which consists of implementing measures within the organization to comply with the principles of the general regime for the protection of personal data.
  • Official Guide to Personal Data Protection
    By means of which recommendations are suggested for the appointment and definition of the functions of a Personal Data Protection Officer, as a suitable body that will help to comply with the principle of proven responsibility.

The scope of the application is State.

ESG Regulation regarding the integration of the board of directors, board of trustees, or management body of the company (minimum participation/representation of women or minority groups, guidelines on the composition of board members with expertise in ES

Not applicable.

Regulation on fiduciary responsibility and administrators' roles in environmental and social risk management (standards or interpretations regarding the scope of fiduciary responsibility or administrator's duty concerning the company's social purpose, bas

Laws/regulations concerning fiduciary responsibility and administrators' roles in environmental and social risk management include:

  • Law 222 of 1995
    The administrators of the company shall supervise and ensure compliance with the company's bylaws and regulations related to labor, tax, environmental, commercial, accounting, consumer protection, intellectual property, and antitrust laws, as well as any other legal obligations associated with the operation of the entity and its interactions with third parties.
  • Law 1258 of 2008
    Provides in Article 42 that when the simplified joint stock company is used in fraud of the law [...] the shareholders and the administrators who have carried out, participated in, or facilitated the fraudulent acts, shall be jointly and severally liable for the obligations arising from such acts and for the damages caused."

The scope of the application is State.

ESG Regulation concerning corporate purpose.

Laws/regulations concerning corporate purpose include:

  • Law 23 of 1973
    In accordance with Articles 16 and 17 of Law 23 of 1972, the company is legally responsible for the damages caused to the environment and the infringement of environmental regulations during the execution of its corporate purpose. However, it is the responsibility of the members and directors to implement the necessary internal policies. The purpose of this is to prevent the business activity from causing damage to the environment.

The scope of the application is State.

Regulation on types of Benefit and Collective Interest Companies (certifications like B Corps, specific regulations for BIC companies).

Laws/regulations concerning types of benefit and Collective Interest Companies include:

  • Law 23 of 1973
    In accordance with Articles 16 and 17 of Law 23 of 1972, the company is legally responsible for the damages caused to the environment and the infringement of environmental regulations during the execution of its corporate purpose. However, it is the responsibility of the members and directors to implement the necessary internal policies. The purpose of this is to prevent the business activity from causing damage to the environment.
  • Law 1901 of 2018 
    By means of which commercial societies for the common good and collective interest ("BIC") are created and developed.

The scope of the application is State.

ESG Regulation regarding supply chains from the perspective of ESG risk governance.

Laws/regulations concerning supply chains from the perspective of ESG risk governance include:

  • Resolution 138 of 1996
    Prohibits the importation, manufacture, commercialization and use of pesticide products based on METHYL BROMIDE alone or in combination with other chemical substances.
  • Resolution 5951 of 2005
    Provisionally and preventively suspend the manufacture, importation and commercialization of products with Valdecoxib and Parecoxib as active ingredients.
  • Resolution 3675 of 2008
    Whereby an emergency measure is issued prohibiting the importation of milk, milk products and other products, whose composition is based on milk, produced in the People's Republic of China contaminated with melamine.
  • Resolution 2335 de 2009
    Adopts public health measures and modifying Article 7 of Resolution 1478 of 2006.
  • Circular 12 of 2018
    Actions taken by the United Nations Security Council against the Democratic People's Republic of Korea, ("DPRK").
  • Resolution 19022 of 2004
    Provisionally and preventively suspend the manufacture, importation and commercialization of products containing Rofecoxib as the active ingredient, and recommend the suspension of its consumption.
  • Resolution 1528 of 2002
    Prohibits the importation, manufacture, commercialization and use of food grade Potassium Bromate alone or in mixtures of additives containing it for food use or in the treatment of barley for the production of alcoholic beverages.

The scope of the application is State.

ESG Regulation in the context of M&A (ESG due diligence).

Laws/regulations concerning M&A (ESG due diligence) include:

OECD Guidance on Due Diligence for Responsible Supply Chains
The OECD Due Diligence Guidance for Responsible Supply Chains in the Textiles and Footwear Sector (hereinafter "Guidance") helps companies to implement the due diligence recommendations contained in the OECD Guidelines for Multinational Enterprises along the supply chain in the textile and footwear sector in order to prevent and address the potential negative impacts of their activities and their respective supply chains.

The scope of the application is State.

ESG Regulation related to Corporate Digital Responsibility.

Not applicable.

Specific mandates related to national alignment with specific reporting standards.

Not applicable.

Standards regarding the scope and frequency of such reports.

Not applicable.

ESG Latin America & the Caribbean Guide 2024 | Charting Sustainable Futures