Banking Board of Ecuador

RESOLUTION No. JB-2015-3441

THE BANKING BOARD

CONSIDERING:

THAT by letter No. INSS-DASS3-2014-0222 dated March 12, 2014, the National Social Security Intendancy ordered the Administrator and Legal Representative of the Closed Complementary Pension Fund Association ASOPREP-FCPC to send, within a maximum term of five days counted from the receipt of said letter, a duly documented report on the actions carried out, in coordination with PETROAMAZONAS EP, to comply with what is provided in the Fourth Transitional Provision of Resolution No. SBS-2013-504 of July 9, 2013;

THAT by internal memorandum No. INSS-DASS3-2014-0752 dated June 10, 2014, the Director of Audit of Complementary Funds of that date informed the National Social Security Intendancy of that date of the non-compliance with the provision issued in the letter mentioned in the preceding paragraph, for which reason, prior to the report contained in memorandum No. INSS-2014-0943 dated July 7, 2014, the aforementioned former Intendenta, based on article 8, of chapter I "Norms for the application of monetary sanctions", of title V "On sanctions", of book III "General norms for the application of the Social Security Law", of the Codification of Resolutions of the Superintendence of Banks and Insurance and the Banking Board, and based on the delegation conferred by the highest institutional authority, through resolution No. SBS-INSS-2014-583 of July 7, 2014, imposed on the economist María del Carmen Quevedo Tobar, Administrator and Legal Representative of the Closed Complementary Pension Fund Association ASOPREP-FCPC, a fine, in a personal capacity, of US$ 3,500.00;

THAT through communications entered in the Superintendence of Banks and Insurance on July 17 and August 1, 2014, the economist María del Carmen Quevedo Tobar, Legal Representative of the Closed Complementary Pension Fund Association ASOPREP-FCPC, files before the Banking Board an appeal for review against the administrative act contained in resolution No. SBS-INSS-2014-583 of July 7, 2014, supported by articles 75; 76, paragraphs 1, 3, 4 and 7, letters a), b), c), g) h), l) and m); 82; 173; 424; 425; and 426 of the Constitution of the Republic of Ecuador;

THAT by letter No. JB-2014-2048 dated August 4, 2014, the Secretary of the Banking Board communicated to the Legal Representative of the Closed Complementary Pension Fund Association ASOPREP-FCPC, that the appeal for review has been accepted for processing and that additional documentation may be presented within the term of fifteen days after being notified with that letter;

THAT in the written appeal for review filed, the appellant argues: That letter No. INSS-DASS3-2014-0222 of March 12, 2014 was never delivered to the legal representative of ASOPREP FCPC, nor to any official of the entity, or in the judicial mailbox of their sponsoring lawyers, which

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violates due process enshrined in the Constitution; that in the "acknowledgment of receipt" of the Superintendence of Banks and Insurance there is an illegible signature, presumably of Mr. Carlos Alcarráz, who has no representation or administrative function in ASOPREP FCPC; and, that there has been a "tenacious follow-up" to the Fund to present a report on the actions executed, in coordination with PETROAMAZONAS EP, for the compliance of what is provided in the Fourth Transitional Provision of Resolution No. SBS-2013-504 of July 9, 2013, when the Fund has never had in its possession resources corresponding to employer retirement from a labor origin that must be reintegrated to any public institution, all the more so that the Special Employer Retirement that they have is independent of the employer pension determined in the Labor Code;

THAT in accordance with what is provided in the First and Third Transitional Provisions of the Organic Monetary and Financial Code, and in Resolution No. 054-2015-F of March 5, 2015 issued by the Monetary and Financial Policy and Regulation Board, it corresponds to the Banking Board to know and resolve the present appeal for review;

THAT the first paragraph of article 8 of chapter I "Norms for the application of monetary sanctions", of title V "On sanctions", of book III "General Norms for the application of the Social Security Law, of the Codification of Resolutions of the Superintendence of Banks and Insurance and the Banking Board, provides as follows:

"ARTICLE 8.- The Superintendent of Banks and Insurance or his delegate will sanction monetarily the person responsible for the infringement in question, of an institution that is part of the National Social Security System, for non-compliance with instructions issued by the Superintendence of Banks and Insurance to the National Social Security System, a fine of US$ 131.40 to US$ 7,886.82 will be imposed."

THAT regarding the arguments of the appellant related to the fact that letter No. INSS-DASS3-2014-0222 of March 12, 2014 was never delivered to the legal representative of ASOPREP FCPC, nor to any official of the entity, or in the judicial mailbox of their sponsoring lawyers, it must be specified that on folio 104 of the file there is the acknowledgment of receipt, which was incorporated by the former National Social Security Intendenta attached to memorandum No. INSS-2014-1154 of August 7, 2014;

THAT the argumentation referred to seeks to cast doubt on the normal notification procedure carried out by the Superintendence of Banks, and that this sole assertion cannot, by itself, demonstrate that said diligence was not carried out;

THAT the only entity controlled by the National Social Security Intendancy with which this type of inconvenience has arisen is ASOPREP FCPC, since, while economist Quevedo was in office, on several occasions she stated that she had not received certain communications and/or that the signature of the person listed in the General Secretariat's registration sheet did not correspond to any employee of ASOPREP FCPC. It is so much so that the National Social Security Intendancy considered the possibility of notifying it with a Public Notary, since it is the only Fund that has sustained that, while the others have never cast doubt on the notification process of communications in charge of the General Secretariat of this control organism;

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THAT in merit of what is stated, due process enshrined in the Constitution, repeatedly alleged by the appellant, has not been violated;

THAT the arguments that there has been a "tenacious follow-up" to ASOPREP FCPC to present a report on the actions executed, in coordination with PETROAMAZONAS EP, for the compliance of what is provided in the Fourth Transitional Provision of Resolution No. SBS-2013-504 of July 9, 2013, and that the Special Employer Retirement that they have is independent of the employer pension determined in the Labor Code, do not disprove the non-compliance with the precise provision issued through letter No. INSS-DASS3-2014-0222 of March 12, 2014, since the Legal Representative of said Fund never informed, within the granted term, on the actions developed to comply with the Fourth Transitional Provision of Resolution No. SBS-2013-504 of July 9, 2013, which is of a general nature and mandatory compliance;

THAT the National Legal Intendancy, through memorandum INJ-DNJ-SAL-2015-0353 of April 24, 2015, recommended to the Banking Board to reject the claim contained in the appeal for review filed; and,

IN exercise of its legal attributes,

RESOLVES:

SINGLE ARTICLE.- REJECT the claim contained in the appeal for review filed by the economist María del Carmen Quevedo Tobar, Administrator and Legal Representative of the Closed Complementary Pension Fund Association ASOPREP-FCPC; and, consequently, CONFIRM the administrative act contained in resolution No. SBS-INSS-2014-583 of July 7, 2014, through which the National Social Security Intendenta of that date sanctioned the appellant with a fine, in a personal capacity, of US$ 3,500.00, for failing to comply with the provision issued through letter No. INSS-DASS3-2014-0222 of March 12, 2014.

NOTIFY.- Given in the Superintendence of Banks, in Quito, Metropolitan District, on the twenty-seventh of May of two thousand fifteen.

Econ. Rodrigo Landeta Parra GENERAL INTENDENT, S PRESIDENT OF THE BANKING BOARD, E

I CERTIFY.- Quito, Metropolitan District, on the twenty-seventh of May of two thousand fifteen.

Lcdo. Pablo Cobo Luna SECRETARY OF THE BANKING BOARD

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Banking Board of Ecuador