Adjunct Superintendent Resolution No. 001-2025-SMV/11

PERU Ministry of Economy and Finance

SMV
Superintendencia del Mercado de Valores
Electronically signed document in the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and authorship Adjunct Superintendent Resolution SMV No. 001-2025-SMV/11 Lima, January 06, 2025 Subject: To sanction Banco Pichincha with two (02) reprimands for having committed two (02) minor infractions, classified in item 3.1 numeral 3 of Annex I of the Sanctions Regulation Administered: BANCO PICHINCHA Subject: Administrative Sanctioning Procedure of a single administrative instance Main Type: Item 3.1 numeral 3 of Annex I of the Sanctions Regulation MINOR INFRACTIONS File No.: 2024030329 The Adjunct Superintendent of Market Conduct Supervision SEEN:
The administrative file No. 2024030329, containing the administrative sanctioning procedure initiated by the General Superintendent of Conduct Compliance of the Superintendencia del Mercado de Valores – SMV (hereinafter, the IGCC), against Banco Pichincha (hereinafter, the Issuer); and Report No. 1412-2024-SMV/11.2 (hereinafter, the Report), issued by said IGCC; CONSIDERING:
I. FUNCTION AND COMPETENCE OF THE SASCM

1. That, the IGCC – the instructing body of the administrative sanctioning procedures (hereinafter, the PAS) referred to in the present case – has brought to the attention of the Adjunct Superintendent of Market Conduct Supervision of the SMV (hereinafter, SASCM), the PAS of administrative file No. 2024030329 with the aim that it issues a decision as the sanctioning body of a single administrative instance in said PAS. In this way, the SASCM assumes competence in observance of the exercise of the supervision function and the sanctioning power of the Superintendencia del Mercado de Valores – SMV

PERU Ministry of Economy and Finance

SMV
Superintendencia del Mercado de Valores
Electronically signed document in the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and authorship established through the Unified Concorded Text of its Organic Law, Decree Law No. 26126 (hereinafter, LOSMV), and in the Unified Ordered Text of the Securities Market Law, Legislative Decree No. 861, approved by Supreme Decree No. 020-2023-EF1 (hereinafter, TUO LMV); as well as by what is provided in the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01 (hereinafter, Sanctions Regulation); and, in articles 42 and 43 of the Organization and Functions Regulation of the Superintendencia del Mercado de Valores – SMV, approved by Supreme Decree No. 216-2011-EF (hereinafter, ROF-SMV), in the sense that it is a specific function of the SASCM to impose sanctions in a single administrative instance whose compliance control corresponds to said Adjunct Superintendency. Likewise; the SASCM has the powers to issue corrective measures aimed at reversing the situation altered by the commission of the infractions;
II. FACTS, CHARGES AND DEFENSES
2.1 Facts
2. That, it was evaluated whether the Issuer complied with communicating in a timely manner the material facts referred to: (i) the appointment of the President of the Board of Directors through a Board of Directors Session on April 25, 2023; and, (ii) the appointment of the Vice President of the Board of Directors also through a Board of Directors Session on April 25, 2023;
2.2 Charges
3. That, as a result of said evaluation, through Letter No. 3033-2024-SMV/11.2 of August 21, 2024 (hereinafter, the Charge Letter), two (02) charges were formulated against the Issuer for having failed to present the material facts attributed in said Letter in a timely manner. The charges formulated were as follows:
(i) Through a material fact of April 25, 2023, the Issuer informed that in a Board of Directors Session, held on the same day, among other matters, the appointment as Vice President of the Board of Directors of Mr. Jorge Eduardo Guillermo Ramirez del Villar was approved, which should have been communicated on the same day of his appointment; however, it was only communicated as a material fact on June 12, 2023 (File No. 2023026255). (ii) Through a material fact of April 25, 2023, the Issuer informed that in a Board of Directors Session, held on the same day, among other matters, the appointment as President of the Board of Directors of Mr. Lionel Guillermo Derteano Ehni was approved, which should have been communicated on the same day of his appointment; however, it was only communicated as a material fact on June 12, 2023. (File No. 2023026256);
4. That, in this sense, the commission of two (02) minor infractions classified in item 3.1 of numeral 3 of Annex I of the Sanctions Regulation was attributed to the Issuer;
2.3 Defenses
5. That, through a document presented on September 03,

1 Through Supreme Decree No. 020-2023-EF, published on February 10, 2023 in the Official Gazette El Peruano, the Unified Ordered Text of the Securities Market Law, Legislative Decree No. 861, was approved.

PERU Ministry of Economy and Finance

SMV
Superintendencia del Mercado de Valores
Electronically signed document in the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and authorship 2024, the Issuer presented its defenses, stating the following:
(i) The Issuer recognizes the commission of the infractions, according to what is established in letter a) of article 26 of the Sanctions Regulation.
(ii) Likewise, it requests that the criteria established in the Sanctions Regulation for the imposition of a sanction be taken into consideration:
a) Antecedents: The Issuer states that although it has incurred sanctions in the last four years, these have been minor and without repercussions in the market, without illicit benefits derived. b) Recidivism: The Issuer states that it is not a recidivist in the commission of this type of infraction. This is evidenced by the absence of a firm sanction resolution imposed by the SMV, within a period of one (01) year immediately prior to the commission of the infraction to be sanctioned. c) Circumstances of the commission of the infraction: The Issuer states that it adopted corrective measures to avoid future non-compliance, highlighting that the lack of timely information was due to an atypical situation, without malicious intent. d) Economic damage caused and its repercussion in the market: The omission in the communication of the appointment of executives has not caused economic damage to investors. e) Illicit benefit resulting from the commission of the infraction: No benefit or gain has been obtained as a consequence of the infraction. f) Probability of detection of the infraction: The detection of the infraction is easy due to the late communication presented by the Issuer. g) Severity of the damage to the public interest and/or protected legal good: No damage to the public interest or repercussions in the market has occurred, so it is appropriate to assume that such hypothetical damages have not taken place and adjust the possible sanction accordingly. h) Existence or not of intent in the infringer's conduct: The Issuer states that it had no intention in the commission of the non-compliance. The fact that originated this process has been an isolated fact and the product of an exceptional circumstance in our history;
6. That, the Unified Ordered Text of the General Administrative Procedure Law, approved by Supreme Decree No. 004-2019-JUS (hereinafter, TUO of the LPAG) contains common rules for the actions of the administrative function of the State and regulates all administrative procedures developed in the entities, including special procedures. Likewise, numeral 3) of article 248 of the TUO of the LPAG, points out the criteria regarding the graduation of the sanction: (a) The illicit benefit resulting from the commission of the infraction, (b) The probability of detection of the infraction, (c) The severity of the damage to the public interest and/or protected legal good, (d) The economic damage caused, (e) Recidivism, for the commission of the same infraction within a period of one (1) year from when the resolution that sanctioned the first infraction became firm, (f) The circumstances of the commission of the infraction; and, (g) The existence or not of intent in the infringer's conduct;
7. That, the charges formulated, the defenses

PERU Ministry of Economy and Finance

SMV
Superintendencia del Mercado de Valores
Electronically signed document in the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and authorship presented, and the criteria regarding the graduation of the sanction have been the subject of evaluation in the Report, which has been brought to the attention of the SASCM;
8. That, in observance of what is provided by numeral 5 of article 255 of the TUO of the LPAG, through Letter No. 5076-2024-SMV/11 of November 08, 2024, the Report was sent to the Issuer so that it may send its allegations within a period of five (5) business days of notification. However, to date the Issuer has not presented its allegations regarding the Report;
III. MATTERS TO BE DETERMINED
9. That, in the present PAS it corresponds to determine the following:
(i) Whether the Issuer incurred or not in the infractions indicated in the Charge Letter and Report.
(ii) Whether it corresponds or not to sanction the Issuer.
IV. ANALYSIS
4.1 Applicable Normativity
10. That, article 30 of the TUO of the LMV states: “The registration of a certain value or issuance program entails for its issuer the obligation to inform the SMV and, if applicable, to the respective stock exchange or entity responsible for the conduct of the centralized trading mechanism, of the material facts, including ongoing negotiations, about itself, the value and the offer made of it, as well as to disclose such facts in a truthful, sufficient and timely manner. The information must be provided to said institutions and disclosed as soon as the fact occurs or the issuer takes knowledge of it, as the case may be” (Underline added);
11. That, numeral 4 of Annex 1 of the Regulation of Material Facts and Reserved Information, approved by SMV Resolution No. 005-2014-SMV/01 (Regulation of Material Facts), states that the “Appointment, dismissal and changes in the members of the board of directors and General Management and/or their equivalent bodies.” constitutes a material fact (Underline added);
12. Consequently, it would have been non-compliant with what is provided in numeral 9.1 of article 9 of the Regulation of Material Facts, which states: “The Issuer must inform its material fact as soon as such fact occurs or the Issuer takes knowledge of it, and in no case beyond the day on which it has occurred or has been known (…)”. (Underline added);
13. That, the non-compliance in the late communication of material facts is classified in item 3.1 of numeral 3 of Annex I of the Sanctions Regulation, which states that it constitutes a minor infraction: “To present outside the established period, or to do so incompletely, or, without observing the technical specifications approved by the SMV or without communicating the approval by the corresponding corporate body, to the SMV, to the Stock Exchange, to the entity in charge of the centralized trading mechanism or to any other entity or subject of the securities market, the individual or consolidated audited financial information, the individual or consolidated interim financial statements, management report, special audit report, material facts, and annual reports.”;

PERU Ministry of Economy and Finance

SMV
Superintendencia del Mercado de Valores
Electronically signed document in the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and authorship
14. That, according to article 35 of the Sanctions Regulation, such infractions are sanctionable with a reprimand or a fine not less than one (1) UIT and up to twenty-five (25) UIT;
4.2 Evaluation of the case
15. That, in administrative file No. 2024030329, which contains the documentation of the present PAS, it is appreciated that through Memorandum No. 3015-2023-SMV/11.1 of July 24, 2023 (File No. 2023031679), the IGSC – the body of the Superintendencia del Mercado de Valores – SMV that has within its functions and powers, the supervision of compliance with the norms applicable to companies with securities registered in the RPMV, evaluating the indications of possible infractions, and remits, for its consideration, the reports of indications of infractions, to the IGCC – remitted to the IGCC, the result of its evaluation, and specifically what refers to the present case;
16. That, it must be kept in mind that the procedures and legal forms with which the IGSC conducts its auditing and/or supervision activity and upon concluding it with a report of indications of infraction, determine that its pronouncement or opinion on a specific supervision topic – which can even contain a decision, for example, the adoption of corrective measures – is an opinion on the merits of the matter; it must be specified that said opinion and the report of indications of infraction of the IGSC are not binding for the IGCC, as established in the second paragraph of article 9 of the Sanctions Regulation 23 ;
17. That, in this way it is had that in the evaluation of the facts related to the present PAS have intervened and participated previously to the issuance of this Resolution, two (2) other administrative bodies of the Superintendencia del Mercado de Valores – SMV, functionally independent from each other and from this Office; first the IGSC which at its opportunity reported the indications of infraction and then the IGCC which, as a result of its evaluation, formulated the Charge Letter and the Report; and at this point of the PAS it corresponds to the Office of the SASCM to issue a pronouncement containing its decision regarding the mentioned charge, being precise to indicate that by the nature of the same, as previously stated, it will be a decision of a single administrative instance;
18. That, with respect to the defenses presented by the Issuer, it corresponds to indicate the following:

• The Issuer expressly and in writing recognizes its responsibility for the commission of the infractions referred to the late presentation of the material fact of April 25, 2023, regarding the agreements approved in a Board of Directors Session, held on the same day, on (i) the appointment as Vice President of the Board of Directors of Mr. Jorge Eduardo Guillermo Ramirez del Villar, which should have been communicated on the same day of his appointment and (ii) the appointment as President of the Board of Directors of Mr. Lionel Guillermo Derteano Ehni, which should have been communicated on the same day of his appointment; however, both facts were communicated on June 12, 2023.
• The Issuer makes the recognition of responsibility by virtue of what is provided in letter a) of numeral 2 of article 257 of the TUO of the LPAG and letter a) of article 26 of the Sanctions Regulation.
• Notwithstanding the above, the Issuer requests to take into account some arguments for the evaluation of the sanction criteria that will determine the corresponding sanction. Regarding this, the Issuer's arguments will be collected and evaluated in the section where the sanction criteria are evaluated in detail.
• Finally, it is opportune to indicate that the Issuer is fully aware of its obligations, which refer to the presentation of periodic and eventual information to the securities market. Therefore, it is its absolute responsibility to comply with the disclosure of relevant facts in a truthful, complete and timely manner as soon as they occur or knowledge thereof is obtained, and in no case beyond the day they have happened or have been known;

19. That, having failed to present in a timely manner the material facts detailed above and given the recognition of responsibility by the Issuer, it can be concluded that it incurred in two (02) infractions classified in item 3.1. of numeral 3 of Annex I of the Sanctions Regulation;
20. That, in accordance with everything expressed, having been proven that the Issuer has incurred in two (02) conduct constituting infractions, it will proceed to determine the sanction that would be applicable, for which effect the principle of reasonableness and the sanction criteria, contained in article 344 of the TUO of the LMV, in article 25 of the Sanctions Regulation and what is provided by numeral 3 of article 248 of the TUO of the LPAG, will be taken into consideration, which will be developed in the following section;
    V. DETERMINATION OF THE SANCTION
21. That, having determined the commission of the attributed infractions, it corresponds to evaluate the sanctions in accordance with article 25 of the Sanctions Regulation, concordant with numeral 3) of article 248 of the TUO of the LPAG and article 344 of the TUO of the LMV, which develop the criteria for sanction graduation: (i) the sanction antecedents of the issuer, (ii) recidivism, (iii) the circumstances of the commission of the infraction, (iv) the economic damage caused and its repercussion in the market, (v) the illicit benefit resulting from

PERU Ministry of Economy and Finance

SMV
Superintendencia del Mercado de Valores
Electronically signed document in the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and authorship the commission of the infraction, (vi) the probability of detection of the infraction, (vii) the severity of the damage to the public interest and/or protected legal good and (viii) the existence or not of intent in the infringer's conduct;
22. That, in addition to the previously cited norms, regarding the late communication of material facts, the Criteria applicable to the administrative sanctioning procedure for non-compliance with the norms regulating the submission of periodic or eventual information, approved by SMV Resolution No. 006-2012-SMV/01, in force at the time of the commission of the infractions (hereinafter, Old Sanction Criteria); will be taken into consideration;
23. That, however, it must be indicated that through article 1 of Resolution No. 007-2023-SMV/01 of September 04, 2023, the Gradual Sanction Regime for late presentation of financial information, annual report and material facts was approved (hereinafter, New Gradual Sanction Regime), whose article 4 disposed its validity from January 01, 2024; and in article 2 of said Resolution the Sanction Criteria are repealed;
24. That, in attention to the foregoing and considering that the normativity has been modified during the processing of the present PAS, it corresponds to analyze if in the present case the provisions of the New Gradual Sanction Regime should be applied by virtue of the Principle of Retroactive Favorability, established in numeral 5 of article 248 of the TUO of the LPAG, which states that: “(...) the sanctioning provisions in force at the moment the administrator incurs in the conduct to be sanctioned are applicable, unless the subsequent ones are more favorable to him”;
SANCTION CRITERIA
25. That, with respect to the antecedents of the infringer, article 25 of the Sanctions Regulation establishes that the antecedents of the infringer are the sanctions imposed on him by the SMV that became firm within the four (04) years prior to the moment of the commission of the infraction to be sanctioned. Likewise, the commission of the same infraction in the year prior to the infraction to be sanctioned is not considered as antecedents. In application of said criterion, it has been verified that the Issuer has two (02) sanction antecedents, as indicated in the Report;
26. That, with respect to recidivism for the commission of the same infraction within a period of one (1) year from when the resolution that sanctioned the first infraction became firm, letter b) of article 25 of the Sanctions Regulation establishes that a firm sanction imposed by the SMV within a period of one (1) year prior to the commission of the infraction to be sanctioned is taken into account. Regarding this, it has been verified that there is no recidivism on the part of the Issuer with respect to the infractions referred to the late presentation of material facts;
27. That, regarding the criterion of circumstances of the commission of the infraction, it must be noted that from the verification of the information disseminated by the Issuer on the Institutional Page of the SMV in the Digital Platform Unique of the Peruvian State for Citizen Orientation 4 , the following is observed:

4 Link of the Institutional Page of the SMV in the Digital Platform Unique of the Peruvian State for Citizen Orientation: https://www.gob.pe/smv

PERU Ministry of Economy and Finance

SMV
Superintendencia del Mercado de Valores
Electronically signed document in the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and authorship

SMV
Superintendencia del Mercado de Valores
Electronically signed document within the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and the authorship

(i) The Issuer communicated on June 12, 2023 the material fact regarding the appointment as Vice President of the Board of Directors of Mr. Jorge Eduardo Guillermo Ramirez del Villar; however, his appointment was approved in a Board of Directors session on April 25, 2023, meaning the material fact was communicated with a delay of forty-eight (48) calendar days.

(ii) The Issuer communicated on June 12, 2023 the material fact regarding the appointment as President of the Board of Directors of Mr. Lionel Guillermo Derteano Ehni; however, his appointment was approved in a Board of Directors session on April 25, 2023, meaning the material fact was communicated with a delay of forty-eight (48) calendar days;

28. That, regarding the economic damage caused and its repercussion on the market, it must be noted that there is no evidence of quantifiable damage, understood as economic harm occasioned to one or more investors;

29. That, regarding the illicit benefit resulting from the commission of the infraction, it has not been proven that as a consequence of the infractions committed by the Issuer, an illicit benefit was obtained or generated;

30. That, regarding the probability of detection of the infraction, it must be indicated that the facts subject to charges are verified through the SMV's internal control systems, so it is considered that for this type of non-compliance, the probability of detection is high and less complex, as it results from the SMV's supervision activities;

31. That, regarding the gravity of the damage to the public interest and/or the protected legal interest, it must be indicated that the timely presentation of material facts aims to allow investors to make adequately informed investment decisions. In this way, investors are protected and asymmetry in access to information is reduced; therefore, the protected legal interest is the transparency of the securities market, which, when transgressed, affects the public interest. In this sense, the infractions incurred by the Issuer affect the transparency of the securities market;

32. That, regarding the existence or not of intent in the offender's conduct, it can be observed that the Issuer did not act with intent in the commission of the infractions; however, a lack of diligence is evident;

33. That, regarding the evaluation of the Principle of Favorable Retroactivity, the Issuer has sanction records, but no aggravating circumstances related to recidivism, proof of quantifiable damage, serious repercussion on the market, obtaining illegal benefit, or intent in the commission of the infractions are observed; therefore, in the opinion of the IGCC, the proposed sanctions would be warnings for the non-compliances subject to charges;

34. That, it should be noted that it has been verified that the infractions subject to charges simultaneously meet the conditions established in clause ii) of numeral 4.2 of the Previous Sanction Criteria, in force at the time of the commission of the infractions, as well as those indicated in numeral 6.1 of the New Gradual Sanction Regime; therefore, there is no more favorable norm, as in both cases the proposed sanction is a warning for the non-compliances subject to charges;

35. That, regarding the application of the Warning sanction, clause ii) of numeral 4.2 of the Previous Sanction Criteria states that the warning sanction may be applied when the following occur simultaneously: (i) The impact on market transparency is minimal; (ii) The infraction committed has not caused concrete damage to investors or associates; (iii) The offending subject has no records or, if it does, they are infractions classified as minor offenses imposed in the four (4) years prior to the commission of the infraction being evaluated; (iv) The offending subject has not obtained a benefit from its illegal conduct; and, (v) It has not been proven that the offender acted with intent in the commission of the infraction;

36. That, as detailed in the evaluation of the sanction criteria, this Deputy Superintendence can state that: (i) The impact on market transparency was minimal; (ii) The infractions committed have not caused concrete damage to investors or associates, since no type of complaint or receipt of indication regarding this has been registered; (iii) The Issuer has infraction records classified as minor; (iv) The offending subject has not obtained a benefit from its illegal conduct; and, (v) It has not been proven that the offender acted with intent in the commission of the infractions;

37. That, therefore, having concurrently fulfilled what is stated in clause (ii) of numeral 4.2 of the Previous Sanction Criteria, in force at the date of the commission of the infractions, and without prejudice to what is stated by the IGCC in the Report insofar as it considers that one (01) warning should be imposed on the Issuer for the non-compliance subject to charge; this Deputy Superintendence considers that since there are two (02) infractions incurred by the Issuer, two (02) warnings must be imposed, one (01) for each non-compliance subject to the charges;

38. That, regarding the recognition of responsibility, the Issuer, through a written defense dated September 3, 2024, expressly recognized responsibility for the charges of the present procedure. However, the mitigating circumstance of responsibility by recognition of responsibility of the offender regarding the non-compliances is not applicable, in accordance with numeral 1 of literal a) of article 26 of the Sanctions Regulation, insofar as the sanction for these infractions is a warning;

In accordance with the provisions of numerales 14 and 36 of article 43 of the Regulation of Organization and Functions of the Superintendencia del Mercado de Valores – SMV, approved by Supreme Decree Nº 216-2011-EF;

RESOLVES:

Article 1º.- Declare that Banco Pichincha has incurred two (02) infractions of a minor nature, typified in clause 3.1 of numeral 3 of Annex I of the Sanctions Regulation, approved by SMV Resolution N° 035-2018-SMV/01, for: (i) not having timely communicated the material fact regarding the appointment of the President of the Board of Directors through a Board of Directors Session on April 25, 2023; and, (ii) not having timely communicated the material fact regarding the appointment of the Vice President of the Board of Directors through a Board of Directors Session on April 25, 2023.

PERÚ Ministry of Economy and Finance

SMV
Superintendencia del Mercado de Valores
Electronically signed document within the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and the authorship

Article 2º.- Sanction Banco Pichincha with two (02) warnings, pursuant to article 1° of this Resolution.

Article 3º.- This Resolution does not exhaust the administrative route, and may be challenged before this Deputy Superintendence of Market Conduct Supervision by filing a reconsideration appeal, an administrative remedy recognized in article 218 of the Single Consolidated Text of the General Administrative Procedure Law – Law N° 7444, approved by Supreme Decree N° 004-2019-JUS, within a period of fifteen (15) business days, counted from the day following its notification, as it is a procedure of a single administrative instance.

Article 4º.- In the event that this Resolution is not subject to challenge, it must be published on the SMV Institutional Website on the Single Digital Platform of the Peruvian State for Citizen Orientation (www.gob.pe/smv), in observance of the provisions of numeral 1 of article 7 of the “Policy on dissemination of normative projects, norms of general character, early agenda and other administrative acts of the SMV”, approved by SMV Resolution N° 014-2014-SMV/01 and its amendments, and by the provisions of the last paragraph of article 14 of the Sanctions Regulation, approved by SMV Resolution N° 035-2018-SMV/01.

Article 5º.- Transcribe this Resolution to Banco Pichincha.

Register, communicate and publish,

Carlos Rivero Zevallos
Deputy Superintendent
Deputy Superintendence of Market Conduct Supervision