In relation to the information sent in our informative flash of June 1, 2022, we clarify that, since Decree 398 of 2020 determined that the provision of its article 1 should be added as article 18.104.22.168.1 of chapter 16, title 1, part 2 of book 2 of the Decree 1074 of 2015, said provision (article 1 of Decree 398 of 2020, integrated as article 22.214.171.124.1 of chapter 16, title 1, part 2 of book 2 of decree 1074 of 2015), will continue in force even after the end the health emergency. This provision modified the quorum required for holding non-face-to-face or mix meetings established by article 19 of Law 222 of 1995 as of the declaration of the state of sanitary emergency.
Notwithstanding the foregoing, we emphasize that, considering that according to the provisions of article 126.96.36.199.4 of decree 1081 of 2015, decrees and resolutions of a general nature that are submitted to the consideration of the President of the Republic cannot regulate matters reserved to the law, nor infringe norms of a higher rank than the one that is going to be issued, it could be interpreted that the inclusion of the regulation of article 19 of Law 222 of 1995 made by the President of the Republic in the framework of the sanitary emergency and included as a permanent regulation in Decree 1074 of 2015, lacks legality and exceeds its regulatory power.
However, unless there is a declaration of nullity of the inclusion of article 1 of Decree 398 of 2020 in decree 1074 of 2015, this provision is protected by the presumption of legality and consequently, said regulation shall be considered as valid and applicable even after the sanitary emergency is over.
For your reference, below you can find a transcription of the described legal provision:
“ARTICLE 188.8.131.52.1. Non-face-to-face meetings. For the purposes of non-face-to-face meetings referred to in article 19 of Law 222 of 1995, modified by article 148 of Decree Law 019 of 2012, when reference is made to “all partners or members” it is understood that it is of those who participate in the non-face-to-face meeting, provided that there is the number of participants necessary to deliberate as legally or statutorily established.
The legal representative must record in the minutes the continuity of the necessary quorum throughout the meeting. Likewise, it must carry out the identity verification of the virtual participants to guarantee that they are in fact the partners, their proxies or the members of the board of directors.
The legal and statutory provisions on calling, quorum and majorities of face-to-face meetings will be equally applicable to non-face-to-face meetings referred to in article 19 of Law 222 of 1995, modified by article 148 of Decree Law 019 of 2012.
PARAGRAPH. The rules regarding non-face-to-face meetings will be equally applicable to mix meetings, understanding them as those that allow the physical and virtual presence of the partners, their proxies or the members of the board of directors.”
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