Adjunct Superintendent Resolution No. 013-2025-SMV/11 — SMV — PE

That, the IGCC - the instructing body of the administrative
sanctioning procedures (hereinafter, PAS) referred to in the present case - has brought to the knowledge of the Adjunct Superintendent of Market Conduct Supervision of the SMV (hereinafter, SASCM), the PAS contained in the administrative file No. 2024046437 with the aim that it issues a decision as the sanctioning body of single instance, according to the type of infraction evaluated. In this way, the SASCM assumes competence in observance of the exercise of the supervision function and of the sanctioning faculty of the SMV established through the

PERÚ Ministry of Economy and Finance
SMV
Securities Market
Superintendency
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 authorship Unified Concordant Text of its Organic Law, Decree Law No. 26126 (hereinafter, LOSMV), and the Unified Ordered Text of the Securities Market Law, Legislative Decree No. 861, approved by Supreme Decree No. 020-2023-EF-1 (hereinafter, TUO of the 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 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 for the commission of infractions whose compliance control corresponds to the referenced Adjunct Superintendency. Likewise, the SASCM has the faculties to issue corrective measures aimed at reversing the situation altered by the commission of the infraction;
II. FACT, CHARGE AND DEFENSES
2.1 Fact
2. That, it was evaluated whether the Issuer complied with communicating in a
timely manner the important fact referred to the cessation of Mr. Raúl Benavides Ganoza from the position of Director and his appointment as President of the Board and the appointment of Mr. Daniel Domínguez Vera to the position of Director, which should have been communicated on February 15, 2024;
2.2 Charge
3. That, as a result of said evaluation, through
Letter No. 5249-2024-SMV/11.2 of November 20, 2024 (hereinafter, Charge Letter), the charge was formulated against the Issuer for having communicated in a timely manner the important fact referred to the cessation of Mr. Raúl Benavides Ganoza from the position of Director and his appointment as President of the Board and the appointment of Mr. Daniel Domínguez Vera to the position of Director, which should have been communicated on February 15, 2024 (date of the agreement in Board Session); however, it was communicated on February 16, 2024;
2.3 Defenses
4. That, through a document dated December 04, 2024, the
Issuer presented its defenses, stating the following: “After reviewing the imputed fact, through this communication we adhere to what is established in article 26 of SMV Resolution No. 035-2018-SMV-01, Sanctions Regulation, which establishes the mitigating factors of responsibility for infractions. In this sense, within the deadline granted for the presentation of our defenses, we expressly and unconditionally recognize our responsibility for the imputation detailed in the previous numeral. Additionally, we consider that, in application of what is provided in numeral 6.1 of 2 upon meeting the conditions regulated therein. Likewise, it is worth highlighting that on February 15 of 2024, the important facts derived from the board session of the same date were presented, corresponding to the applicable financial information (file No. 2024006948) and to the call for the Mandatory Annual General Meeting of

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

PERÚ Ministry of Economy and Finance
SMV
Securities Market
Superintendency
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 authorship Non-Presential Shareholders (file No. 2024006961); omitting due to an involuntary error proceeding with the publication of the important fact that is the subject of the present administrative sanctioning procedure, which was published on February 16, 2024 at 13:18 hours, indicating in it that the date of the agreement is February 15, 2024, in the interest of transparency. In this sense, we consider that, without prejudice to the express and unconditional recognition of the imputation made, a sanction of reprimand corresponds to have produced a minimal effect on market transparency and that the infraction committed has not caused concrete harm to investors, in addition to meeting the rest of the requirements detailed in numeral 6.1 of SMV Resolution No. 007-2023- SMV/01.”;
5. That, the Unified Ordered Text of the General
Administrative Procedure Law, Law No. 27444, 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 gravity of the damage to the public interest and/or protected legal good, (d) The economic harm caused, (e) Recidivism for the commission of the same infraction within a period of one (1) year from when the resolution sanctioning the first infraction became final, (f) The circumstances of the commission of the infraction, and (g) The existence or non-existence of intent in the conduct of the infringer;
6. That, the charge formulated, the defenses 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 knowledge of the SASCM;
7. That, in observance of what is provided by numeral 5
of article 255 of the TUO of the LPAG, through Letter No. 060-2025-SMV/11 of January 03, 2025, the Report was sent to the Issuer, so that it could formulate its allegations within the deadline of five (05) business days of notification; however, despite being legally notified via the MVNet System in accordance with the MVNet System and SMV Virtual Regulation, approved by SMV Resolution No. 004-2024- SMV/01 (hereinafter, MVNet Regulation), to date, it has not presented its corresponding allegations;
III. QUESTIONS TO DETERMINE
8. That, in the present PAS it corresponds to determine the following:
(i) Whether the Issuer incurred or did not incur the infraction indicated in the Charge Letter and Report; (ii) Whether it corresponds or does not correspond to impose a sanction on the Issuer;
IV. ANALYSIS
4.1 Applicable Normativity
9. 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

PERÚ Ministry of Economy and Finance
SMV
Securities Market
Superintendency
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 authorship responsible for the management of the centralized trading mechanism, of the important facts, including ongoing negotiations, about itself, the value and the offer that is 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);
10. That, numeral 5.1 of article 5 of the Regulation of Important Facts and Reserved Information, approved by SMV Resolution No.
005-2014-SMV/01 (hereinafter, Regulation of Important Facts), contemplates that: «In the Annex that is part of this Regulation, an enumerative list of facts, acts, agreements and decisions is included, which aims to facilitate the Issuer's identification, qualification and classification of the information that could qualify as an important fact.» (Underline added);
11. That, numeral 4 of Annex 1 that is part of
the Regulation of Important Facts establishes that it constitutes an important fact the “4. Appointment, cessation and changes in the members of the board and General Management and/or its equivalent bodies. (…)”;
12. That, according to numeral 9.1 of article 9 of the
Regulation of Important Facts, “The Issuer must inform its important 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 (…).”;
13. That, the non-compliance with the timely presentation
of important facts is typified in paragraph 3.1 of numeral 3 of Annex I of the Sanctions Regulation, which states that it constitutes a minor infraction:
“Present outside the established deadline, or do it in an incomplete manner, 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 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, important facts and, annual reports.” (Highlight added);
14. That, according to article 35 of the Sanctions Regulation, such infraction is sanctionable with a reprimand or fine not less than one (01) UIT and up to twenty-five (25) UIT;
4.2 Case Evaluation
15. That, in the administrative file No. 2024046437,
which contains the documentation of the present PAS, it is appreciated that through Memorandum No. 2243-2024-SMV/11.1 of June 20, 2024 (File No.
2024023783), the General Superintendent of Conduct Supervision (hereinafter, IGSC)

the body of the SMV that has within its functions and faculties, the supervision of the compliance of the norms applicable to issuers with values registered in the RPMV,
evaluating the indications of possible infractions, and refers, for its consideration, the report of indications of infraction respective, to the IGCC-, referred to the IGCC, the result of its evaluation, and specifically what refers to the present case;

2 In article 245 of the TUO of the LPAG it is indicated as forms or modes in which the inspection activity could conclude the following: 1) Certificate of conformity of the activity developed by the addressee; 2) Recommendation of improvements or corrections of the activity developed by the addressee; 3) The warning of the existence of non-compliances not susceptible of meriting the determination of administrative responsibilities; 4) The recommendation of the start of a procedure with the aim of determining the administrative responsibilities that correspond; 5) The adoption of corrective measures and 6) Other forms as established by special laws. “Article 9.- PRELIMINARY INQUIRIES AS A CONSEQUENCE OF SUPERVISION ACTIONS (…) When said bodies conclude that there are sufficient indications of possible administrative infractions they refer the corresponding reports to the General Superintendencies of Compliance, which determine if it corresponds to start or not an administrative sanctioning procedure. If the case is, the General Superintendencies of Compliance may carry out inspections or additional investigations of the indications reported. In the case of possible infractions in the scope of the Regulation of the Participatory Financial Financing Activity and its Managing Societies, the preliminary inquiries are carried out by the General Superintendent of Investigation and Innovation, a dependency that if there are sufficient indications of possible administrative infractions will determine if it corresponds to start or not an administrative sanctioning procedure. (…).” “Article 26.- MITIGATING CONDITIONS OF RESPONSIBILITY FOR INFRACTIONS The following constitute mitigating conditions of responsibility for infractions:
a) Recognition of responsibility of the infringer in an express and written manner, once the administrative sanctioning procedure has started.
When the applicable sanction is a fine, it is reduced, taking into account the following:

If the recognition of the infraction is presented within the deadline granted for the presentation of
defenses, the amount of reduction will be fifty percent (50%). (…).”

PERÚ Ministry of Economy and Finance
SMV
Securities Market
Superintendency
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 authorship responsibility in an express and unconditional manner regarding the imputation formulated; and indicates that although on February 15, 2024 the important fact referred to the Board session of that date was presented, due to an involuntary error it omitted proceeding with the publication of the important fact that is the subject of the present administrative sanctioning procedure, which it published on February 16, 2024 at 13:18 hours;
20. That, in this way, having proven the
conduct constitutive of the infraction previously indicated and having determined the administrative responsibility of the Issuer, it corresponds to analyze the proposal of sanction in attention to what is provided by the principle of reasonableness, as well as the applicable provisions to the recognition of the infraction, established in letter a), numeral 1, of article 26 of the Sanctions Regulation, which specifies that the recognition of responsibility of the infringer in an express and written manner, constitutes a mitigating condition of responsibility. It being important to specify that the application of this mitigating factor will be made at the moment of determining the corresponding sanction;
V. DETERMINATION OF THE SANCTION
21. That, for the purpose of determining the possible sanction, according to what is provided in paragraph 3.1 of numeral 3 of Annex I of the Sanctions Regulation, the infraction on late communication of important facts
constitutes a minor infraction: “Present outside the established deadline, or do it in an incomplete manner, 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 financial information audited, the individual or consolidated interim financial statements, management report, special audit report, important facts and, annual reports.” (Highlight added);
22. That, according to what is established in article 35
of the Sanctions Regulation, it corresponds that these infractions be sanctioned with a reprimand or fine not less than one (01) UIT and up to the limit of twenty-five (25) UIT;
5.1 Sanction Criteria
23. That, having determined the commission of the
infraction imputed, it corresponds to evaluate the sanction 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 of sanction graduation: (i) the sanction antecedents of the issuer, (ii) recidivism, (iii) the circumstances of the commission of the infraction, (iv) the economic harm caused and its repercussion on the market, (v) the illicit benefit resulting from the commission of the infraction, (vi) the probability of detection of the infraction, (vii) the gravity of the damage to the public interest and/or protected legal good and (viii) the existence or non-existence of intent in the conduct of the infringer;
24. That, in addition to the previously cited norms, for
the purpose of determining the sanction to be imposed on the Issuer for the non-compliance referred to the late communication of important fact, the Criteria applicable to the administrative sanctioning procedure for non-compliance with the norms that regulate the submission of periodic information or

PERU Ministry of Economy and Finance
SMV
Superintendency of the Securities Market
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 eventual authorship, approved by SMV Resolution No. 006-2012-SMV/01, in force at the time of the commission of the infraction (hereinafter, Special Sanctioning Criteria);

That, it must be indicated that through Article 1 of Resolution No. 007-2023-SMV/01 of September 4, 2023, the Gradual Sanctioning Regime for late submission of financial information, annual reports, and material events was approved (hereinafter, New Gradual Sanctioning Regime), whose Article 4 provided for its validity starting from January 1, 2024; and in Article 2 of said Resolution, the Special Sanctioning Criteria are repealed;
That, in view of the foregoing and considering that the regulation has been modified during the processing of the present administrative sanctioning procedure, it corresponds to analyze whether in the present case the provisions of the New Gradual Sanctioning Regime should be applied by virtue of the Principle of Favorable Retroactivity, established in numeral 5 of Article 248 of the TUO of the LPAG, which states that: "(...) sanctioning provisions in force at the time the administrator incurs the conduct to be sanctioned are applicable, unless subsequent ones are more favorable to them";
That, according to what was previously mentioned, regarding sanctioning criteria, it proceeds to analyze: (i) the sanctioning history 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 the commission of the infraction, (vi) the probability of detection of the infraction, (vii) the gravity of the damage to the public interest and/or protected legal good and (viii) the existence or non-existence of intent in the infringer's conduct;
That, regarding the gravity of the damage to the public interest and/or protected legal good, it must be indicated that the timely submission of periodic or eventual information by issuers of securities registered in the RPMV constitutes a fundamental obligation in the transparency of the securities market, so that market participants can make their investment decisions adequately informed; consequently, although no gravity of damage to the public interest is evidenced, the non-compliance with the obligation to inform the market within the deadline by some issuers affects market transparency, which is considered a legal good that can be protected;
That, regarding the sanctioning history, it is established that the infringer's history consists of sanctions imposed by the SMV that became final within the four (04) years prior to the moment of the commission of the infraction to be sanctioned. In application of this criterion, it has been verified that the Issuer has no history as indicated in the Report;
That, regarding recidivism, in the case under analysis, it is verified that there is recidivism by the Issuer, in the terms referred to in letter b) of Article 25 of the Sanctioning Regulations, as indicated in the Report;
That, regarding the circumstances of the commission of the infraction, it is verified that from the information disseminated on the SMV Institutional Page, it is evident that the Issuer communicated the material event referred to the cessation of Mr. Raúl Benavides Ganoza from the position of Director and his designation as President of the Board of Directors and the designation of Mr. Daniel Domínguez Vera in the position of Director with a (01) day delay;
That, regarding the economic damage caused and the repercussion in the market, it is considered that although by their nature, both criteria cannot be measured reliably; it can be recognized that the non-compliance committed by the Issuer has a negative repercussion in the market, since the analyzed material event has not been disseminated timely. However, it must be mentioned that, to date, there has been no claim or complaint from any shareholder and/or investor against the Issuer, so it can be affirmed that it has not been evidenced that the non-compliances have produced a quantifiable damage, understood as an economic damage caused to one or several investors;
That, regarding the illicit benefit resulting from the commission of the infraction, it can be affirmed that there are not sufficient elements to indicate that the Issuer obtained an illegal benefit as a consequence of the commission of the infraction under evaluation in the present PAS;
That, regarding the probability of detection of the infraction, it must be pointed out that the probability is high, due to the fact that this type of non-compliances are corroborated by the SMV itself through periodic control actions;
That, with respect to the existence or non-existence of intent in the infringer's conduct, it is considered that the Issuer's action was not intentional, however, a lack of duty of diligence is evidenced, since it knows the deadlines for the timely communication of material events in its condition as an issuer with securities registered in the RPMV;
That, likewise, the guidelines for the application of the warning sanction are contained in subsection 6.1 of Article 6 of the New Gradual Sanctioning Regime in the following way: “a. When the impact on market transparency is minimal. This statement is linked to the criterion of the gravity of the damage to the public interest and/or protected legal good; b. The committed infraction has not caused concrete damage to investors or associates; c. The infringing subject does not have a history or, having one, they are sanctions corresponding to minor infractions imposed by the SMV that had become final in the four (4) years prior to the commission of the infraction being evaluated; d. The infringing subject is not a recidivist; e. The infringer has not obtained benefits from his administrative infraction; and, f. It has not been proven that the infringer acted with intent in the commission of the infraction.” (Highlight added);
That, taking into account the Special Sanctioning Criteria, as well as the evaluation carried out by this Adjunct Superintendency for the determination of the sanction; it is considered that although the committed infraction has not caused concrete damage to investors and it has not been evidenced that the Issuer has obtained a benefit from his illegal conduct nor proven that he acted with intent in the commission of the infraction; nevertheless, the warning sanction could not be applied, given that the Issuer is a recidivist as detailed in the Report;
That, in that sense, it corresponds to impose on the Issuer a fine of 2.10 UIT equivalent to S/ 10,815.00 (Ten Thousand Eight Hundred Fifteen and 00/100 Soles), taking into account the UIT 5 in force at the time of the commission of the imputed infraction;

5.2 Acknowledgment of Responsibility

That, as has been pointed out, the Issuer acknowledged responsibility regarding the infraction within the deadline to present defenses; therefore, numeral 1 of letter a) of Article 26 of the Sanctioning Regulations is applicable, which provides that, in the case the acknowledgment is presented during the deadline granted for the presentation of defenses, the reduction amount will be fifty percent (50%);
That, finally, after having analyzed each of the Special Sanctioning Criteria contained in the Report, as well as the analysis carried out by this Adjunct Superintendency, and of the acknowledgment of the infringer as a mitigating circumstance of responsibility for which the reduction of the sanction by fifty percent (50%) proceeds; consequently, a fine of 1.05 UIT is imposed on the Issuer as a sanction, equivalent to the sum of S/ 5,407.50 (Five Thousand Four Hundred Seven and 50/100 Soles); and;

Being in accordance with what is provided in numerals 14 and 36 of Article 43 of the Regulation of Organization and Functions of the SMV, approved by Supreme Decree No. 216-2011-EF

RESOLVES:

Article 1º.- Declare that Sociedad Minera El Brocal S.A.A. has incurred one (01) infraction of a minor nature, typified in subsection 3.1 of numeral 3 of Annex I of the Sanctioning Regulations, approved by SMV Resolution No. 035-2018-SMV/01, for having communicated late the material event referred to the cessation of Mr. Raúl Benavides Ganoza from the position of director and his designation as President of the Board of Directors and the designation of Mr. Daniel Domínguez Vera in the position of director.

Article 2º.- Sanction Sociedad Minera El Brocal S.A.A. with one (01) fine of 1.05 UIT, equivalent to the sum of S/ 5,407.50 (Five Thousand Four Hundred Seven and 50/100 Soles); for what is provided in Article 1° of this Resolution.

Article 3º.- This Resolution does not exhaust the administrative route, this being able to be challenged before this Adjunct Superintendency of Market Conduct Supervision by filing the reconsideration appeal, administrative appeal recognized in Article 218 of the Unified Text of the General Administrative Procedure Law No. 27444, approved by Supreme Decree No. 004-2019-JUS, within the deadline of fifteen (15) business days counted from the day following its notification, since it is a procedure of a single instance. In case this Resolution is not challenged, the regime of reduction of the corresponding sanction may be accepted.

5 The Supreme Decree No. 309-2023-EF set the UIT for the 2024 exercise at S/ 5,150.00.

Article 4º.- In case this Resolution is not the object of challenge, it must be published on the “SMV Institutional Page on the Unique Digital Platform of the Peruvian State for Citizen Orientation (www.gob.pe/smv)”, in observance of what is provided by numeral 1 of Article 7 of the “Policy on diffusion of normative projects, laws of general character, early agenda and other administrative acts of the SMV”, approved by SMV Resolution No. 014-2014-SMV/01, and by what is provided in the last paragraph of Article 14 of the Sanctioning Regulations, approved by SMV Resolution No. 035-2018-SMV/01.

Article 5º.- Transcribe this Resolution to Sociedad Minera El Brocal S.A.A.

Carlos Rivero Zevallos
Adjunct Superintendent
Adjunct Superintendency of Market Conduct Supervision

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