Banking Board of Ecuador

RESOLUTION No. JB-2015-3448

THE BANKING BOARD

CONSIDERING:

THAT the First Transitional Provision of the Organic Code of Monetary and Financial Affairs, published in the Official Register Second Supplement No. 332 of September 12, 2014, establishes that resolutions contained in the Codification of Resolutions of the Superintendence of Banks and Insurance and of the Banking Board, and norms issued by control bodies, will remain in effect insofar as they do not oppose the Organic Code of Monetary and Financial Affairs, until the Monetary and Financial Policy and Regulation Board resolves what corresponds, according to the case; and, with the second paragraph of the Third Transitional Provision, which states that the Banking Board will continue to act until it resolves all claims, appeals, and other administrative procedures that it was hearing as of the date of entry into force of the same, within a period of one hundred and eighty days, extendable at the discretion of the Monetary and Financial Policy and Regulation Board; extension granted for an additional 180 days, through Resolution of the Monetary and Financial Policy and Regulation Board No. 054-2015-F, of March 5, 2015;

THAT by letter No. SC.IRQ-DRMV.SC.2014.089.4278, of February 13, 2014, Dr. Camilo Valdivieso Cueva, Superintendent of Companies (S), communicated to this control body that during the control process of negotiations falling under said organism, regarding State Bonds used for the payment of pensions to former employees of the Teaching Staff, in the year 2013, carried out by Santa Fe Casa de Valores S.A., in which the Magisterium Ecuatoriano Pension Fund participates, it was observed that the selling principals instruct said entity that part of their payment be deposited into the account of the Magisterium Ecuatoriano Pension Fund, so that it in turn makes a transfer to the Single Preferred Account of each one, since the Fund guarantees them a payment of returns;

THAT on February 20, 2014, with credential No. IRG-DASS-2014-003, of February 20, 2014, a special examination was ordered for the National Teaching Staff Pension Fund, regarding the "Single Preferred Account" product from its inception until January 31, 2014; and that it also analyzed the participation of the fund as promoter and sponsor in the Sabanilla Hydroelectric Plant project, through the Magisterium Clean Energy trust; as well as, the purchase of bonds from retirees through Santa Fe, Casa de Valores S.A.;

THAT once the special examination was concluded, the members of the National Board of Directors of the Fund were convened to read the draft report, which took place on April 28, 2014; and that by letter No. DNC-OFI-14-00294, of May 13, 2014, engineer Juan José Castelló, Executive President of the Magisterium Ecuatoriano Pension Fund, presented the corresponding defenses, which were analyzed prior to the issuance of the final report; and the result of the audit was communicated to said official by letter No. IRG-DASS-2014-004-OBS of June 20, 2014, signed by Dr. Faddul Mosquera, Regional Intendant of Guayaquil (S) from whose analysis non-compliance with what is established in articles 1, 2 and 3 of Chapter I, Title I, Book III of the Codification of Resolutions of the Superintendence of Banks and Insurance and of the Banking Board; and of articles 2, 9 and 13 of the Fund's Statute, insofar as it concerns the creation of the Single Preferred Account created for retirees of the National Educational System, which establishes conditions different from those granted to fund participants such as collections with the possibility of periodic withdrawals, with rates higher than those granted

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to participants, which in addition to not having a pension purpose, contravene what is established in article 220 of the Social Security Law in concordance with article 18, Chapter I, Title I, Book III of the aforementioned Codification, which do not contemplate the possibility that persons who are not affiliated with the Mandatory General Insurance and who have concluded their labor relationship, can continue to belong to a complementary fund, without liquidating their individual accounts despite having fulfilled the contingency for which the fund was created; and, that the imposed sanction also responds to other non-compliances contained in the audit report, which have to do with the maximum levels that can be contributed to the fund; cancellations and pre-cancellations of deposit certificates that depositors maintained in Consulcrédito S.A., which were transferred to the fund's account with the authorization of the contributors; deposits and investments made as a result of the purchase of bonds from retirees; observations related to investments made from income derived from the collections of the Single Preferred Account; and, improper integration of the fund's board of directors;

THAT by Resolution No. IRG-DASS-2014-059 of June 19, 2014, signed by Dr. Faddul Mosquera, Regional Intendant of Guayaquil (S), a personal fine of US$ 1,500,00 (One thousand five hundred 00/100 dollars) was imposed on licentiate Hugo Andrade Chuma, Member of the National Board of Directors of the Magisterium Ecuatoriano Pension Fund, on the grounds of having failed to comply with the provisions of the first paragraph of article 220 of the Social Security Law; that of articles 1, 2 and 3 of Section I, Chapter I, Title I, of Book III of the Codification of Resolutions of the Superintendence of Banks and Insurance and of the Banking Board; that of article 18 of Section IV, Ibid; and that of articles 2, 9 and 13 of the Fund's Statute. The aforementioned sanction is imposed without prejudice to any other type of action that may arise. The aforementioned resolution is analyzed, in principal:

That the integration of the Single Preferred Account fails to meet the objective of benefit and affiliation to the IESS, established in the first paragraph of article 220 of the Social Security Law, which provides: "Affiliates to the IESS, regardless of their income level, may make voluntary savings to improve the amount or conditions of the benefits corresponding to the Mandatory General Insurance or to protect security contingencies not covered by it"; and, in articles 1 and the first paragraph of article 2 of Section I, Chapter I, Title II of the Codification of Resolutions of the Superintendence of Banks and Insurance and of the Banking Board, which prescribe: Article 1.- "Closed complementary pension funds – FCPC’s are integrated with the autonomous patrimony constituted in favor of participants from their labor relationship with public, private or mixed institutions, or with a professional or occupational guild, to improve the amount or conditions of the benefits corresponding to the mandatory general insurance, through the voluntary savings of their affiliates and the voluntary contribution of their employers, if applicable, under the terms established in the current legal framework." Article 2 "Those who may be participants of a closed complementary pension fund legally registered with the Superintendence of Banks and Insurance, are persons who have a dependent relationship with a public, private or mixed institution and, those who belong to the professional or occupational guild under which the fund was constituted..."

THAT according to the information provided, on March 28, 2014, the administration of the Magisterium Ecuatoriano Pension Fund authorized disbursements for expenses related to the Sabanilla hydroelectric project, in the amount of US$ 568,726.45, in the capacity of promoter and sponsor of said project, which fails to comply with what is prescribed in article 3, of Section I, Chapter I, Title I, Book III of the Codification of Resolutions of the Superintendence of Banks and of the Banking Board; and, in article 9 of the Fund's Statute, which provide: Art. 3, of Section I, Chapter (...) "Closed complementary pension funds that are registered in accordance with what is provided in this chapter, are of social benefit and non-profit, have the character of private and are administered through an autonomous patrimony independent of the patrimony of the public, private or mixed institutions from which the labor or guild relationship derives. Complementary funds will have only pension purposes and will be legally capable of acquiring rights and contracting obligations; they may make exclusive and non-exclusive investments, which must be framed within the internal regulations of the fund and in function of the nature of the benefit. (...)

THAT the gentlemen licentiate Hugo Andrade Chuma, (among others, indicated there), members of the National Board of Directors of the Magisterium Ecuatoriano Pension Fund (FCME), created the "Single Preferred Account", by resolution of the National Board of Directors, in session of February 8, 2012, so that retired teachers, who do not wish to liquidate their individual account, continue to be affiliated with the FCME and can make additional deposits with free availability, as stated in the minutes of the National Board of Directors session, of that date, code No. DN-ACT-012; for which they updated the Operations Policy Manual of the Magisterium Ecuatoriano Pension Fund, on April 3, 2012, establishing as policies, among others the following: - Continue as a participant of the fund, once he has ceased in the national educational system, with conditions different from those of his participants, such as: collections for terms ranging from 6 months to 3 years. –Possibility of periodic withdrawals of their deposits (monthly, quarterly or annual). –Interest rates, higher than those granted to participants (6 to 8%). These policies violate articles 2, 9 and 13 of the Pension Fund Statute; article 18 of Section IV, Chapter I, Title I, Book III of the Codification of Resolutions of the Superintendence of Banks and Insurance and of the Banking Board; and, 220 of the Social Security Law.

THAT the gentlemen licentiate Hugo Andrade Chuma, (among others indicated there), members of the National Board of Directors, by minutes code No. DN-ACT-13 of March 22, 2012, approved the Single Preferred Account (CUP) policy, updated on April 3, 2012, creating the possibility among others, to continue as a participant of the fund, once he has ceased in the national educational system, with conditions different from those of the participants of the same, such as: collections for terms ranging from 6 months to 3 years; possibility of periodic withdrawals of their deposits (monthly, quarterly or annual); interest rates higher than those granted to participants (6 to 8%), violating articles 2, 9 and 13 of the Pension Fund Statute, article 18 of Section IV, Chapter I, Title I, Book III of the Codification of Resolutions of the Superintendence of Banks and Insurance and of the Banking Board; and, Art. 220 of the Social Security Law, a norm that regulates the formation of complementary funds, establishing the possibility of making voluntary savings, only to affiliates to the IESS, that is, for all persons who receive income from the execution of a work or the provision of a physical or intellectual service, with or without a labor relationship, who have met the affiliation requirements, indicated in its article 2.

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THAT the so-called Single Preferred Account does not have the pension purpose of improving the amount or conditions of the benefits corresponding to the mandatory general insurance, consequently the administration of the Magisterium Ecuatoriano Pension Fund violated article 1 of Resolution SBS-2004-740, the norm in force at the date of creation of the account in question; and violates article 1 of Resolution SBS-2013-504, in force.

THAT the provisions established in the Social Security Law and the Codification of Resolutions of the Superintendence of Banks and Insurance and of the Banking Board, being hierarchically superior norms, prevail over articles 12, 16 and 19 of the Fund's Statute, which contain provisions incompatible, contrary to those established by norms of superior hierarchy.

THAT the Social Security Law in its article 305 provides as follows: "Art. 305- APPLICABLE REGIME.- Entities that make up the National Social Security System and natural and legal persons that make up the Private Insurance System, for their constitution, organization, activities, functioning and extinction, will be subject to the provisions of this Law, the General Law of Institutions of the Financial System and its Regulation, the Organic Law of Financial Administration and Control, the Securities Market Law, the Commercial Code, the Companies Law, in a supplementary manner, and to the regulatory norms and resolutions that control bodies created by the Political Constitution of the Republic dictate for this effect."

THAT article 2 of Section I, Chapter I, Title V, of Book III, of the Codification of Resolutions of the Superintendence of Banks and Insurance and of the Banking Board, defines as INSTRUCTIONS OF THE SUPERINTENDENCE OF BANKS AND INSURANCE, the following: "It is the set of norms, mandates, provisions, requirements and guidelines imparted by the control body to the National Social Security System. These instructions may be contained in resolutions, letters or circulars and be general; or specific."

THAT article 8, Section III.- OF SANCTIONS FOR NON-COMPLIANCE WITH INSTRUCTIONS IMPARTED BY THE SUPERINTENDENCE OF BANKS AND INSURANCE, Chapter I, Title V, Book III, of the Codification of Resolutions of the Superintendence of Banks and Insurance and of the Banking Board states: The Superintendent of Banks and Insurance or his delegate will sanction pecuniarily 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 imparted 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 with a document presented on July 3, 2014, licentiate Hugo Andrade Chuma, filed before the Regional Intendancy of Guayaquil an appeal for reconsideration, regarding the pecuniary sanction imposed with resolution No. IRG-DASS-2014-059 of June 19, 2014, which was denied through letter No. IRG-DJyTL-2014-0599 July 24, 2014, by which the sanction imposed on the appellant was confirmed, in view of the fact that said appeal was not based on the existence of facts or elements of law unknown to the Superintendence of Banks, as required by Article 3, Chapter II, Title XVI, Book I of the Codification of Resolutions of the Superintendence of Banks and Insurance and of the Banking Board;

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THAT by document received at the Superintendence of Banks on August 5, 2014, licentiate Hugo Andrade Chuma, member of the National Board of Directors of the Magisterium Ecuatoriano Pension Fund, filed before the Banking Board an appeal for review of the administrative act contained in letter No. IRG-DJyTL-2014-0599 of July 24, 2014, which was admitted to processing through letter No. JB-2014-2194 of August 14, 2014;

THAT licentiate Hugo Andrade Chuma bases his appeal for review on the fact that the defenses contained in letter No. DNC-OFI-14-00294 of May 13, 2014, were not taken into account by the Superintendence of Banks; that there is a lack of motivation of letter No. IRG-DJyTL-2014-0599 because it does not carry out any examination regarding the argumentation presented in the appeal for reconsideration, which was filed because the legal arguments were not taken into account, nor were the defenses analyzed, and because it was the obligation of the control body and the corresponding authority to analyze and motivate each of the arguments, for which reason, it is considered null; with respect to the Single Preferred Account, he points out that it was created under the protection of what is established in article 16 of the Social Statute; that its objective is to improve the benefits of the Mandatory Social Security since it attends the pension needs of the retired participant, such as, the contingency of death, credit services, housing, among others, which are purely pensional as stated in the Operations Policy Manual of April 2, 2013, approved by the National Board of Directors and which was delivered to the Audit Commission, but it did not take it into account; that the CUP is a reserve that maintains the retired affiliate of the National Educational System or the retiree of the Magisterium Ecuatoriano Complementary Fund, which allows him to attend risks and needs proper to his condition, since he does not have fixed income as a teacher; that the statute was duly approved by the Superintendence of Banks and is in force; that the new statute is in the process of approval and that any change that occurs will govern for the future and in no case with retroactive character; that it is not accurate to affirm that it was the board that created the possibility of continuing as a participant of the fund once he has ceased functions in the National Educational System, since this is determined by the statute in force through its articles 12, 16 and 19; that with the CUP several benefits are obtained; among others, life insurance for the family group and coverage of funeral services; these last ones improve the amount and conditions of the death and funeral benefits offered by the Mandatory General Insurance, for which reason article 1 of Resolution No. SBS-2004-740, nor article 1 of Resolution No. SBS-2013-504 in force has been violated; that it is not explained which are the norms of the law of the Codification that contradict the statutory norms, nor why; that by virtue of the principle of non-retroactivity established in article 7 of the Civil Code, it should have been considered that if resolution No. SBS-2013-504, introduced changes, and if said resolution contained a period of adaptation, said changes, to enter into force, should have been approved by the Superintendence of Banks; and, that it should have carried out the control based on the applicable norm at the time, for legal security; that article 66, numerals 13 and 15 of the Constitution recognizes and guarantees the right to associate, meet and manifest in a free and voluntary manner. Thus, based on this principle of voluntariness, people have the right to manifest their decision to join the fund, as well as to separate and the right to request the liquidation of their individual account; that articles 18 and 19 of Resolution No. SBS-2013-504, establish that separation is voluntary, therefore the participant can withdraw from the Fund even without ceasing functions; and also articles 22 and 24 state that separation is voluntary and when the requirements of the statute are met; that therefore, if the participant can separate even without ceasing functions, he can, having met the requirements, request the liquidation of his individual account;

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THAT likewise the appellant points out with respect to the observations relative to the Fund's participation in the Sabanilla Hydroelectric Plant Project, that it was not taken into account the fact that said project is of a private nature, that it is owned by HIDELGEN S.A., which signed a contract with CONELEC through which the State for a period of 15 years, buys all the energy it generates, with a tariff of 6.86 KWH; that the Fund has given a practical response by contributing to national objectives and at the same time achieving complementary benefits of an individual and collective nature for its affiliates as stated in its Statute; that in 10 years the debt is paid, that is, the shareholders who contribute as capital 18 million, in that period will be owners of 100% of the Central, since the business pays the debt; that their shares are revalued and that an annual profit of 14% is projected on an ITR of 14.6% and the corresponding revaluation of the share year by year; that 6230 people, of them 5,800 affiliates to the fund, 150 retirees, 160 relatives or friends have perfected their investment and the resources have been transferred to the Magisterium Renewable Energy Trust FMER by USD 12’510.000 and with that they are owners of 70% of the share package of HDG; that to put the project into operation USD 62’400.000 is required, structured in 18 million of capital and 44’400.000.00 by securitization; that the management of the FUND as promoter and sponsor has allowed the project to pass from the condition of project to being a hydroelectric plant under construction; that the securitization trust has presented the documentation of the securitization to be approved by the Superintendence of Companies; that once the USD 12’000.000.00 of new investors was met, the return of the pre-investment resources was requested, when the project had already entered execution; that the condition of the fund as sponsor of the project is concretized in investments through the securities market, in titles generated in a securitization process that must be legally approved, and, in shares inscribed registered in the securities market, as authorized by the Statute; that they have been protagonist managers of an unprecedented fact, national savings coming from small and medium investors, financing productive projects for the development of the country; and, that the intervention of the fund in the trust and in the Sabanilla project meets the objectives of article 9 of the Statute; that the appealed administrative act refers to the final report No. IRG-DASS-2014-002 of June 6, 2014, of which he never had knowledge, for which his right to defense guaranteed in article 76 of the Constitution has been violated; that the appealed act does not say which are the instructions imparted by the Superintendence of Banks that have been violated, since instruction is not the same as regulation; that the impugned resolution also does not indicate in what way article 18 of the Statute is violated; that the Social Security Law nor the current regulation has not been violated either; that both the Single Preferred Account and the Sabanilla Hydroelectric Plant were implemented before the massive retirement process, since more than 20,000 employees of the National Educational System have retired and this year 16,000 additional retirements could occur, to all of whom the CUP allows them to maintain a life insurance for them and their family group; and, that in the second case, it is a contribution to the development of the country; and, that he impugns letter No. IRG-DJyTL-2014-0599 of July 24, 2014, which ratifies the sanction imposed through resolution No. IRG-DASS-2014-059 of June 19, 2014, which he asks to be left without effect;

THAT with respect to the grounds of the appeal presented by licentiate Hugo Andrade Chuma, it must be considered that according to Article 368 of the Constitution of the Republic, it corresponds to the State to regulate, regulate and control activities related to social security; and, in concordance with said constitutional norm, article 18 of the Social Security Law provides that the State guarantees the good governance of the Mandatory General Insurance administered