Adjunct Superintendent Resolution No. 014-2025-SMV/11 — SMV — PE

PERÚ Ministry of Economy and Finance

SMV
Securities Market
Superintendence
Electronically signed document under 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. 014-2025-SMV/11 Lima, February 13, 2025 Subject: To sanction Unión de Cervecerías Peruanas Backus y Johnston S.A.A. with a total fine of 22.94 UIT for having incurred in ten (10) minor infractions typified in item 3.1 of number 3 of Annex I of the Sanctions Regulation. Administered entity:
UNION OF PERUVIAN BEER BREWERIES BACKUS AND
JOHNSTON S.A.A.
Subject: Administrative Sanctioning Procedure of single administrative instance Main Type: Item 3.1 of number 3 of Annex I of the Sanctions Regulation MINOR INFRACTIONS File No.: 2024046702 The Adjunct Superintendent of Market Conduct Supervision SEEN:
The administrative file No. 2024046702, containing the administrative sanctioning procedure initiated by the General Superintendence of Conduct Compliance of the Securities Market Superintendence – SMV (hereinafter, the IGCC), against Unión de Cervecerías Peruanas Backus y Johnston S.A.A. (hereinafter, the Issuer); as well as Report No. 1704- 2024-SMV/11.2 (hereinafter, the Report), issued by the IGCC; CONSIDERING:
I. FUNCTION AND COMPETENCE OF THE SASCM

That, the IGCC –the instructing body of the
administrative sanctioning procedures (hereinafter, the PAS) referred to in this case–, has brought to the knowledge of the Adjunct Superintendence of Market Conduct Supervision of the SMV (hereinafter, SASCM), the PAS of administrative file No. 2024046702, with the aim that it issues a decision as

PERÚ Ministry of Economy and Finance

SMV
Securities Market
Superintendence
Electronically signed document under the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and authorship the sanctioning body of single administrative instance, as appropriate to the type of infractions evaluated in said PAS. In this way, the SASCM assumes competence in observance of the exercise of the supervision function and of the sanctioning faculty of the Securities Market Superintendence – SMV established through the Unified Concorded Text of its Organic Law, Law Decree 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 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 Securities Market Superintendence – 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 as the single administrative instance, according to the type of the infractions evaluated whose compliance control corresponds to the referred Adjunct Superintendence. Likewise; the SASCM has the faculties to issue corrective measures tending to reverse the situation altered by the commission of the infraction;
II. FACTS, CHARGES, DEFENSES AND ARGUMENTS OF THE ISSUER
2.1 Facts
2. That, it was evaluated whether the Issuer complied or not with
disclosing to the securities market the important facts;
2.2 Charges
3. That, as a result of said evaluation,
through Letter No. 5126-2024-SMV/11.2 of November 18, 2024 (hereinafter, Letter of Charges), the following charges were formulated to the Issuer:
1) The late communication as an important fact of the report of the
position in financial derivative instruments as of September 30, 2023, which had to be submitted no later than October 16, 2023; however, it was sent on July 15, 2024 (File No. 2024030473).
2) The late communication as an important fact of the report of the
position in financial derivative instruments as of October 31, 2023, which had to be submitted no later than November 15, 2023; however, it was sent on July 15, 2024 (File No. 2024030473).
3) The late communication as an important fact of the report of the
position in financial derivative instruments as of November 30, 2023, which had to be submitted no later than December 18, 2023; however, it was sent on July 15, 2024 (File No. 2024030473)
4) The late communication as an important fact of the report of the
position in financial derivative instruments as of December 31, 2023, which had to be submitted no later than January 16, 2024; however, it was sent on July 15, 2024 (File No. 2024030473).
5) The late communication as an important fact of the report of the
position in financial derivative instruments as of January 31, 2024, which

1 By 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
Superintendence
Electronically signed document under the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and authorship had to be submitted no later than February 14, 2024, however, it was sent on June 24, 2024 (File No. 2024027335).
6) The late communication as an important fact of the report of the
position in financial derivative instruments as of February 29, 2024, which had to be submitted no later than March 14, 2024; however, it was sent on June 24, 2024 (File No. 2024027335).
7) The late communication as an important fact of the report of the
position in financial derivative instruments as of March 31, 2024, which had to be submitted no later than April 12, 2024; however, it was sent on June 24, 2024 (File No. 2024027335).
8) The late communication as an important fact of the report of the
position in financial derivative instruments as of April 30, 2024, which had to be submitted no later than May 15, 2024; however, it was sent on June 24, 2024 (File No. 2024027335).
9) The late communication as an important fact of the report of the
position in financial derivative instruments as of May 31, 2024, which had to be submitted no later than June 17, 2024; however, it was sent on June 24, 2024 (File No. 2024027335).
10) The late communication as an important fact of the report of the
position in financial derivative instruments as of June 30, 2024, which had to be submitted no later than July 12, 2024; however, it was sent on July 15, 2024 (File No. 2024030473);
2.3 Defenses
4. That, through a document presented on December 04,
2024, the Issuer presented its defenses stating the following:
“Regarding this, in accordance with letter a) of article 26 of the SMV Sanctions Regulation, Backus expressly and unconditionally recognizes its responsibility for the facts attributed through the Letter of Charges, as a consequence of which, it requests that its Office take into consideration what is provided in number 2 of the aforementioned cited norm and, consequently, said fines be reduced by thirty percent (30%).”;
5. That, through Supreme Decree No. 004-2019-
JUS, the Unified Ordered Text of Law No. 27444, General Administrative Procedure Law (hereinafter, TUO of the LPAG), was approved, which contains common norms for the actions of the administrative function of the State and regulates all administrative procedures developed in the entities, including special procedures. Likewise, number 3) of article 248 of the TUO of the LPAG, states 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 harm 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 final, (f) The circumstances of the commission of the infraction and, (g) The existence or not of intent in the conduct of the infringer;
6. That, the charges formulated, the defenses and the
criteria regarding the graduation of the sanction have been the subject of evaluation in

PERÚ Ministry of Economy and Finance

SMV
Securities Market
Superintendence
Electronically signed document under the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and authorship the Report, which has been submitted to the knowledge of the SASCM;
7. That, in observance of what is provided by number
5 of article 255 of the TUO of the LPAG, through Letter No. 5895-2024-SMV/11 of December 27, 2024, the Report was sent to the Issuer so that it could formulate its arguments within a period of five (05) business days;
8. That, through a document of January 08, 2025, the
Issuer presented its arguments expressing its conformity with the proposed fine contained in the Report issued by the IGCC;
III. ISSUES 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 Letter of Charges and Report; (ii) Whether it corresponds or not to impose a sanction on the Issuer;
IV. ANALYSIS
4.1 Applicable Normativity
IMPORTANT FACTS
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 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 these 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, number 9.1 of article 9 of the
Regulation of Important Facts and Reserved Information, approved by SMV Resolution No. 005-2014-SMV/01 (hereinafter, Regulation of Important Facts), states:
“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 (…)”. (Underline added);
12. That, number 5.1 of article 5 of the
Regulation of Important Facts states that: “In the Annex that forms part of the present Regulation, an enumerative list of facts, acts, agreements and decisions is included, which aims to facilitate to the Issuer the identification, qualification and classification of the information that could qualify as an important fact”;
13. That, on this particular, number 18.1 of Annex
1 of the Regulation of Important Facts, states that it constitutes an important fact:
“18.1 Monthly position in financial derivative instruments. In accordance with what is stated in Annex 2.”;
14. That, number 4 of Annex 2 of the Regulation of
Important Facts disposes the following: “The obligated Issuer must send, within the ten (10) business days following the close of each month, an important fact with the following detail of its derivative instruments updated to the date of the report:
1. Derivative Instrument.
2. Purpose.
3. Notional Amount.
4. Asset/Liability or Variable that the derivative hedges.
5. Currency.
6. Fair value of the derivative instrument at the close of the reporting month.
7. Amount of total accumulated gain/loss for the year by
derivative financial instruments.
8. Other relevant or explanatory information at the Issuer’s discretion.
(…)”. (Underline added);
15. That, the infraction of these conducts is included
as minor infractions in item 3.1 of number 3 of Annex I of the Sanctions Regulation, which establishes as an infraction: “Submit outside the established deadline, or do so incompletely, or, without observing the technical specifications approved by the SMV or without communicating the approval by
part of 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 audited individual or consolidated financial information, the individual or consolidated interim financial statements, management report, special audit report, important facts and, annual reports”. (Highlight added);
16. That, according to article 35 of the Sanctions
Regulation, said infraction is sanctionable with a reprimand or fine not less than one (01) UIT and up to twenty-five (25) UIT;
4.2 Evaluation of the case
17. That, in the administrative file No.
2024046702, which contains the documentation of the present PAS, it is appreciated that through Memorandum No. 298-2024-SMV/11.1 of January 19, 2024 (File No. 2024002382), Memorandum No. 2251-2024-SMV/11.1 of June 20, 2024 (File No. 2024023801) and Memorandum No. 4101-2024-SMV/11.1 of October 11, 2024 (File No. 2024041447), the General Superintendence of Conduct Supervision (hereinafter, IGSC) –the body of the Securities Market Superintendence – SMV that has within its functions and faculties, the supervision of the compliance of the norms applicable to issuer companies with values registered in the Public Registry of the Securities Market - RPMV, evaluating the indications of possible infractions, and sends, for its consideration, the reports of indications of infraction respective, to the IGCC–, sent to the IGCC, the result of its evaluation, and specifically what refers to the present case;
18. That, it must be kept in mind that the
procedures and legal forms with which the IGSC conducts its activity of oversight and/or supervision and upon concluding it with a report of indications of infraction, determine that its pronouncement or opinion on a specific topic of supervision –which even can contain a decision, for example,

PERÚ Ministry of Economy and Finance

SMV
Securities Market
Superintendence
Electronically signed document under the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and authorship 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 is not binding for the IGCC, as established in the second paragraph of
article 9 of the Sanctions Regulation 2 3
;
19. 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 bodies or administrative instances of the SMV, functionally independent from each other and from this Office; first the IGSC which at its time reported the indications of infraction and then the IGCC which, as a result of its evaluation, formulated the Letter of Charges 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 charges mentioned, being precise to indicate that by the nature of the same, as has been stated previously, it will be a decision of single administrative instance;
20. That, as mentioned previously,
through a document of December 04, 2024, the Issuer presented its defenses regarding the imputations formulated against it in the present file;
21. That, regarding this, the Issuer has recognized its
responsibility in an express and unconditional manner for all of the infractions imputed and requested the reduction of the fine by thirty percent (30%), by virtue of what is provided in number 2 of letter a) of article 26 of the Sanctions Regulation;
22. That, on this particular it corresponds to indicate that, if
although the Letter of Charges was validly notified in the electronic mailbox of the Issuer on November 18, 2024, as detailed in the “receipt of notification confirmation”, according to what was evaluated in the Report; upon not accessing the Issuer's electronic mailbox within five (05) business days, that is November 25, 2024, the “receipt acknowledgment confirmation” is self-generated according to what was evaluated in the Report); therefore, in application of what is provided in number 25.3 of
article 25 4 of the Regulation of the MVNet System and SMV Virtual, approved through

2 In article 245 of the TUO of the LPAG it is stated as forms or modes in which the activity of oversight could conclude the following: 1) Confirmation of conformity of the activity developed by the administered entity; 2) Recommendation of improvements or corrections of the activity developed by the administered entity; 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 according to what special laws establish. «Article 9.- Preliminary inquiries as a consequence of supervision actions (…) When said bodies conclude that there are sufficient indications of possible administrative infractions they send the corresponding reports to the General Superintendences of Compliance, which determine if it corresponds to start or not an administrative sanctioning procedure. If the case arises, the General Superintendences 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 Financing Activity and its Managing Societies, the preliminary inquiries are carried out by the General Superintendence 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. (…)». 4 «Article 25.- Moment and efficacy of Electronic Notifications (…)

PERÚ Ministry of Economy and Finance

SMV
Securities Market
Superintendence
Electronically signed document under the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and authorship SMV Resolution No. 004-2024-SMV/01 (hereinafter, the MVNet Regulation), which states that if the administered entity does not access the message deposited in the Electronic Mailbox within a period of five (05) business days from the Electronic Notification made, it will produce legal effects from the next business day after the expiration of this period, that is from November 25, 2024, having a period to present its defenses until December 11, 2024;
23. That, in that sense, having the Issuer
presented its defenses within the period granted for the presentation of defenses, it corresponds to indicate that the voluntary declaration of recognition of the infraction by the Issuer is deemed as a mitigating condition of responsibility, so that when the applicable sanction is a fine, it is reduced by fifty percent (50%) if the recognition is presented within the period given to present defenses, according to number 1 of letter a) of
article 26 of the Sanctions Regulation, 5 concordant with letter a) of number
2 of article 257 of the TUO of the LPAG, which will be considered at the moment of the determination of the sanction;
24. That, it has been proven that the Issuer presented the
following information late: (i) the important fact of the report of the position in financial derivative instruments as of September 30, 2023, which had to be submitted no later than October 16, 2023, (ii) the important fact of the report of the position in financial derivative instruments as of October 31, 2023, which had to be submitted no later than November 15, 2023, (iii) the important fact of the report of the position in financial derivative instruments as of November 30, 2023, which had to be submitted no later than December 18 2023, (iv) the important fact of the report of the position in financial derivative instruments as of December 31, 2023, which had to be submitted no later than January 16, 2024; (v) the important fact of the report of the position in financial derivative instruments as of January 31, 2024, which had to be submitted no later than February 14, 2024, (vi) the important fact of the report of the position in financial derivative instruments as of February 29, 2024, which had to be submitted no later than March 14, 2024 (vii) the important fact of the report of the position in financial derivative instruments as of March 31, 2024, which had to be submitted no later than April 12, 2024, (viii) the important fact of the report of the position in financial derivative instruments as of April 30, 2024, which had to be submitted no later than May 15, 2024; (ix) the important fact of the report of the position in financial derivative instruments as of May 31, 2024, which had to be submitted no later than June 17, 2024; and (x) the important fact of the report of the position in financial derivative instruments as of June 30, 2024, which had to be

25.3 However, if the Obligated Entity does not access the message deposited in its Electronic Mailbox
within a period of five (5) business days from the Electronic Notification made, it produces legal effects from the next business day after the expiration of this period.
(…)».
5 «“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 been initiated.
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 period granted for the presentation
of defenses, the amount of reduction will be fifty percent (50%).
(…)”.”

PERÚ Ministry of Economy and Finance

SMV
Superintendencia del Mercado de Valores
Documento electrónico firmado digitalmente en el marco de la Ley N° 27269, Ley de Firmas y Certificados Digitales, su Reglamento y modificatorias. La integridad del documento y la autoría presented by no later than July 12, 2024;
25. That, the Issuer, in its arguments, indicated its agreement with the fine proposal contained in the Report through its writing of January 8, 2025;
26. That, consequently, the conduct constitutive of the ten (10) infractions subject to charges is accredited and the administrative responsibility of the Issuer is determined, for which reason, it corresponds to analyze the sanction proposal in accordance with what is provided by the principle of reasonableness and the sanctioning criteria, which will be evaluated in the section on determination of the sanction;
V. DETERMINATION OF THE SANCTION
27. That, for the purpose of determining possible sanctions, the infractions regarding late and incomplete communication of material facts as well as the late submission of financial information, it should be noted that according to what is provided in subsection 3.1 of numeral 3 of Annex I of the Sanctions Regulation, it states that it constitutes a minor infraction:
"To submit outside the established deadline, 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 negotiation 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." (Highlight added);
28. That, according to what is established in article 35 of the Sanctions Regulation, it corresponds that these infractions be sanctioned with a reprimand or a fine not less than one (1) UIT and up to the limit of twenty-five (25) UIT;
5.1 Sanctioning Criteria
29. That, for the purpose of analyzing the applicable sanction proposal, having determined the commission of the infractions subject of the present PAS, it corresponds to determine the sanction to be imposed on the Issuer considering the sanctioning criteria established in article 25 of the Sanctions Regulation, concordant with numeral 3) of article 248 of the TUO of the LPAG, article 344 of the TUO of the LMV and the Criteria applicable to the administrative sanctioning procedure for non-compliance with the regulations that regulate the submission of periodic or eventual information, approved by SMV Resolution No. 006-2012-SMV/01 and its modifications (hereinafter, Special Sanction Criteria), which are concordant with each other;
30. 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 and incomplete communication of material facts and the late submission of financial information, the Criteria applicable to the administrative sanctioning procedure for non-compliance with the regulations that regulate the submission of periodic or eventual information, approved by SMV Resolution No. 006-2012-SMV/01, valid at the time of the commission of the infractions (hereinafter, Special Sanction Criteria);

PERÚ Ministerio de Economía y Finanzas

SMV
Superintendencia del Mercado de Valores
Documento electrónico firmado digitalmente en el marco de la Ley N° 27269, Ley de Firmas y Certificados Digitales, su Reglamento y modificatorias. La integridad del documento y la autoría Sanctions);
31. That, however, it must be indicated that through article 1 of Resolution No. 007-2023-SMV/01 of September 4, 2023, the Gradual Sanction Regime for late submission of financial information, annual report and material facts was approved (hereinafter, New Gradual Sanction Regime), whose article 4 disposed its validity from January 1, 2024; and in article 2 of the referred Resolution the Special Sanction Criteria are repealed;
32. That, in attention to the foregoing and considering that the regulation 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 Favorable Retroactivity, established in numeral 5 of article 248 of the TUO of the LPAG, which states that: "(...) sanctioning provisions valid at the moment the administrator incurs in the conduct to be sanctioned are applicable, unless the subsequent ones are more favorable to him";
33. That, according to what was previously mentioned, regarding the sanctioning criteria, it proceeds to analyze: (i) the sanctioning antecedents of the issuer, (ii) recidivism, (iii) the circumstances of the commission of the infraction, (iv) the economic damage 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 offender;
34. That, with respect to the gravity of the damage to the public interest and/or protected legal good, it must be indicated that the timely presentation 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 limits on the part of the issuers affects the transparency of the market, which is considered a protected legal good;
35. That, regarding the sanctioning antecedents, subsection a) of article 25 of the Sanctions Regulation establishes that they are the firm sanctions imposed by the Superintendencia del Mercado de Valores – SMV within the period of four (4) years prior to the commission of the infraction to be sanctioned; without prejudice to this, it is clarified that the commission of the same infraction in the year prior to the infraction to be sanctioned is not considered as an antecedent. On this particular, from the verification carried out in the SMV Sanctions System, it has been determined that the Issuer has sanctioning antecedents, as detailed in the Report;
36. That, regarding recidivism for the commission of the same infraction, it is appropriate to point out that the Sanctioning Criteria, valid at the time of the commission of these facts, did not include recidivism as a criterion to be taken into account for the application of the sanction, this criterion was only incorporated in the New Gradual Sanction Regime, which establishes in numeral 5.2 that "It is considered that there is recidivism, if during the year prior to the commission of the infraction to be sanctioned, one has been sanctioned for an infraction

PERÚ Ministerio de Economía y Finanzas

SMV
Superintendencia del Mercado de Valores
Documento electrónico firmado digitalmente en el marco de la Ley N° 27269, Ley de Firmas y Certificados Digitales, su Reglamento y modificatorias. La integridad del documento y la autoría of the same nature as the one intended to be sanctioned, provided that such sanction has become firm during said period", likewise, the New Gradual Sanction Regime states that for the purpose of determining recidivism as an aggravating factor, a quantum of up to 10% has been established that would be added to the fine proposal, if it is verified that the offender is a recidivist. Regarding this, it has been verified that there is no recidivism on the part of the Issuer;
37. That, as for the circumstances of the commission of the infraction, it must be noted that, from the verification of the information disseminated by the issuers on the SMV Institutional Page, the following is observed:

The late communication of the material fact referred to the report of the position in financial derivative instruments at September 30, 2023, which had to be presented by no later than October 16, 2023; however, it was sent on July 15, 2024 (with two hundred seventy-three (273) calendar days of delay).
The late communication of the material fact referred to the report of the position in financial derivative instruments at October 31, 2023, which had to be presented by no later than November 15, 2023; however, it was sent on July 15, 2024 (with two hundred forty-three (243) calendar days of delay).
The late communication of the material fact referred to the report of the position in financial derivative instruments at November 30, 2023, which had to be presented by no later than December 18, 2023; however, it was sent on July 15, 2024 (with two hundred ten (210) calendar days of delay).
The late communication of the material fact referred to the report of the position in financial derivative instruments at December 31, 2023, which had to be presented by no later than January 16, 2024; however, it was sent on July 15, 2024 (with one hundred eighty-one (181) calendar days of delay).
The late communication of the material fact referred to the report of the position in financial derivative instruments at January 31, 2024, which had to be presented by no later than February 14, 2024, however, it was sent on June 24, 2024 (with one hundred thirty-one (131) calendar days of delay).
The late communication of the material fact referred to the report of the position in financial derivative instruments at January 31, 2024, which had to be presented by no later than February 14, 2024, however, it was sent on June 24, 2024 (with one hundred thirty-one (131) calendar days of delay).
The late communication of the material fact referred to the report of the position in financial derivative instruments at March 31, 2024, which had to be presented by no later than April 12, 2024; however, it was sent on June 24, 2024 (with seventy-three (73) calendar days of delay).

PERÚ Ministerio de Economía y Finanzas

The late communication of the material fact referred to the report of the position in financial derivative instruments at April 30, 2024, which had to be presented by no later than May 15, 2024; however, it was sent on June 24, 2024 (with forty (40) calendar days of delay).
The late communication of the material fact referred to the report of the position in financial derivative instruments at May 31, 2024, which had to be presented by no later than June 17, 2024; however, it was sent on June 24, 2024 (with seven (07) calendar days of delay).
The late communication of the material fact referred to the report of the position in financial derivative instruments at June 30, 2024, which had to be presented by no later than July 12, 2024; however, it was sent on July 15, 2024 (with three (03) calendar days of delay);

That, with respect to the economic damage caused and its repercussion on the market, this criterion evaluates damage, quantifiable or not, produced by the administrative infraction, which includes the evaluation of the economic damages caused. In this sense, it has not been evidenced that the non-compliance has produced a quantifiable damage, understood as an economic damage caused to one or more investors;
That, regarding the illicit benefit resulting from the commission of the infraction, it must be noted that there is not enough evidence to indicate that the Issuer, as a consequence of the infractions committed, has obtained or generated an illicit benefit;
That, with respect to the probability of detection of the infraction, it must be noted that the failure to timely present periodic or eventual information; is verified through internal control systems, so it is considered that for this type of non-compliance, the probability of detection is high, as well as regarding the omission in the communication of the material facts that was detected as part of the IGSC's work;
That, regarding the existence or non-existence of intent in the conduct of the offender, it can be noted that there is not enough evidence to indicate that the Issuer acted with intent in the commission of the infractions, so this criterion would not have been configured. However, it is necessary to indicate that despite there being no indications to suggest that the Issuer acted with intent, it can be affirmed that the Issuer's conduct was negligent, by not acting with the diligence required for obligations already known by the Issuer;
Sanction Proposal regarding Charges No. 1, 2, 3
That, consequently, as indicated above, considering that the New Gradual Sanction Regime entered into force on January 1, 2024 and the present PAS is in process (sanctioning phase) it corresponds to analyze if this new regulation is more beneficial or not for the determination of the sanction to be imposed, by virtue of the Principle of Favorable Retroactivity, established in numeral 5 of article 248 of the TUO of the LPAG, by which it is possible to apply subsequent sanctioning norms to the commission of the offense as long as they benefit the administrator, it will proceed to grade the corresponding sanction taking into account the Sanctioning Criteria and also the New Gradual Sanction Regime;

PERÚ Ministerio de Economía y Finanzas

SMV
Superintendencia del Mercado de Valores
Documento electrónico firmado digitalmente en el marco de la Ley N° 27269, Ley de Firmas y Certificados Digitales, su Reglamento y modificatorias. La integridad del documento y la autoría
43. That, with respect to the antecedents, the Sanctioning Criteria 6 establish that "it will increase by two percent (2%) if it is determined that the offending subject has sanctioning antecedents and by three (3%) if it has antecedents of the same conduct that is intended to be sanctioned.", likewise, the New Gradual Regime states that "The amount resulting from the application of the guidelines contemplated in numeral 6.2 can be increased up to five percent (5%) if it is accredited that the offending subject has sanctioning antecedents", without making distinction on whether they correspond to different or the same type of offender. Therefore, in order to determine which rule is more beneficial, it was considered that the application of the new regulation will increase one percent (1%) for each sanction resolution that constitutes the antecedent up to a maximum of five percent (5%). In the present case, since six (06) sanctioning antecedents have been identified both of the same type and of different type, it will correspond to apply the additional percentage in the charges that correspond, in accordance with what is provided in the Special Sanction Criteria and the New Gradual Regime;
44. That, with respect to recidivism, the Special Sanction Criteria did not regulate this criterion for its quantification and the New Gradual Regime states that "The amount resulting from the application of the guidelines contemplated in numeral 6.2 can be increased (...) up to ten percent (10%) if it is verified that the offending subject is a recidivist"; in this sense, it is considered that it will increase by five percent (5%) when the Issuer has one (01) sanction resolution that grants recidivism or ten percent (10%) when it has two (02) or more sanction resolutions that grant recidivism. Regarding this, since it has been verified that there is no recidivism on the part of the Issuer, it corresponds not to apply this aggravating factor when determining the fine to be imposed;
45. That, in that sense, it is worth noting that from the review of the Sanctioning Criteria and the New Gradual Regime, we agree with what was determined by the IGCC in the Report, that in all the infractions subject to charges it is more favorable the application of the Special Sanction Criteria, valid at the time of the commission of the infractions, so it corresponds to impose a total fine of 9.45 UIT equivalent to S/ 46,777.50 (forty-six thousand seven hundred seventy-seven and 50/100 soles) 7, according to the following detail:

Fine of 3.15 UIT equivalent to S/ 15,592.50 (Fifteen Thousand Five Hundred Ninety-Two and 50/100 Soles) for the late communication as a material fact of the report of the monthly position in financial derivative instruments at September 30, 2023.

“4.2. Guidelines for the application of the criteria (...)
(iv) In case that a reprimand sanction does not correspond, the competent organs of the SMV must observe the following guidelines referred to the circumstances of the commission of the infraction:
(...)
Regarding non-compliance in the communication of eventual information, such as material facts

For each calendar day of delay, thirty percent (30%) of one (1) UIT will be added up to a maximum of three (3) UIT.
(...)
(v) The amount resulting from the guidelines contemplated in the preceding numeral (iv) will be increased by two percent (2%) if it is determined that the offending subject has sanctioning antecedents and by three (3%) if it has antecedents of the same conduct that is intended to be sanctioned.” 7 The Supreme Decree No. 309-2022-EF fixed the UIT for the 2023 exercise at S/ 4,950.00.

PERÚ Ministerio de Economía y Finanzas

SMV
Superintendencia del Mercado de Valores
Documento electrónico firmado digitalmente en el marco de la Ley N° 27269, Ley de Firmas y Certificados Digitales, su Reglamento y modificatorias. La integridad del documento y la autoría
2. Fine of 3.15 UIT equivalent to S/ 15,592.50 (Fifteen Thousand Five Hundred Ninety-Two and 50/100 Soles) for the late communication as a material fact of the report of the monthly position in financial derivative instruments at October 31, 2023.
3. Fine of 3.15 UIT equivalent to S/ 15,592.50 (Fifteen Thousand Five Hundred Ninety-Two and 50/100 Soles) for the late communication as a material fact of the report of the monthly position in financial derivative instruments at November 30, 2023;
Sanction Proposal regarding Charges No. 4, 5, 6, 7, 8, 9 and 10
46. That, considering that the New Gradual Sanction Regime entered into force on January 1, 2024 and the present PAS is in process (instruction phase) it corresponds to the application of this new regulation for the determination of the sanction to be imposed for the non-compliances detailed in Charges No. 4, 5, 6, 7, 8, 9 and 10, which were committed after the date of entry into force of the New Gradual Sanction Regime;
47. That, in that sense, with respect to the antecedents, the New Gradual Regime states that "The amount resulting from the application of the guidelines contemplated in numeral 6.2 can be increased up to five percent (5%) if it is accredited that the offending subject has sanctioning antecedents", without making distinction on whether they correspond to different or the same type of offender. Therefore, in application of the new regulation it will increase one percent (1%) for each sanction resolution that constitutes the antecedent up to a maximum of five percent (5%). In the present case, since six (06) sanctioning antecedents have been identified, it will correspond to apply the additional percentage in the charges that correspond in accordance with what is provided in the New Gradual Sanction Regime;
48. That, with respect to recidivism, the New Gradual Regime states that "The amount resulting from the application of the guidelines contemplated in numeral 6.2 can be increased (...) up to ten percent (10%) if it is verified that the offending subject is a recidivist"; in that sense, it is considered that it will increase by five percent (5%) when the Issuer has one (01) sanction resolution that grants recidivism or ten percent (10%) when it has two (02) or more sanction resolutions that grant recidivism. Regarding this, since it has been verified that there is no recidivism on the part of the Issuer, it corresponds not to apply this aggravating factor when determining the fine to be imposed;
49. That, in that sense, it is worth noting that from the review of the Sanctioning Criteria and the New Gradual Regime, we agree with what was determined by the IGCC in the Report, that in all the infractions subject to charges it is more favorable the application of the Special Sanction Criteria, valid at the time of the commission of the infractions, so it corresponds to impose a total fine of 36.44 UIT equivalent to S/ 187,640.25 (one hundred eighty-seven thousand six hundred forty and 25/100 soles) 8, according to the following detail:

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

PERÚ Ministerio de Economía y Finanzas

SMV
Superintendencia del Mercado de Valores
Documento electrónico firmado digitalmente en the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and modifications. The integrity of the document and authorship

4. Fine of 6.30 UIT equivalent to S/ 32,445.00 (Thirty-Two Thousand Four Hundred Forty-Five and 00/100 Soles) for the late communication as a material fact of the monthly report on the position in financial derivatives as of December 31, 2023.
5. Fine of 6.30 UIT equivalent to S/ 32,445.00 (Thirty-Two Thousand Four Hundred Forty-Five and 00/100 Soles) for the late communication as a material fact of the monthly report on the position in financial derivatives as of January 31, 2024.
6. Fine of 6.30 UIT equivalent to S/ 32,445.00 (Thirty-Two Thousand Four Hundred Forty-Five and 00/100 Soles) for the late communication as a material fact of the monthly report on the position in financial derivatives as of February 29, 2024.
7. Fine of 6.30 UIT equivalent to S/ 32,445.00 (Thirty-Two Thousand Four Hundred Forty-Five and 00/100 Soles) for the late communication as a material fact of the monthly report on the position in financial derivatives as of March 31, 2024.
8. Fine of 6.20 UIT equivalent to S/ 31,904.25 (Thirty-One Thousand Nine Hundred Four and 25/100 Soles) for the late communication as a material fact of the monthly report on the position in financial derivatives as of April 30, 2024.
9. Fine of 2.73 UIT equivalent to S/ 14,059.50 (Fourteen Thousand Fifty-Nine and 50/100 Soles) for the late communication as a material fact of the monthly report on the position in financial derivatives as of May 31, 2024.
10. Fine of 2.31 UIT equivalent to S/ 11,896.50 (Eleven Thousand Eight Hundred Ninety-Six and 50/100 Soles) for the late communication as a material fact of the monthly report on the position in financial derivatives as of June 30, 2024;

50. That, in this sense, regarding the ten (10) infractions subject to charges referred to the late communication of material facts, considering the evaluation of the Special Sanctioning Criteria, and the analysis carried out by this Adjunct Superintendency, it corresponds to impose on the Issuer a total fine of 45.89 UIT equivalent to S/ 234,417.75 (Two Hundred Thirty-Four Thousand Four Hundred Seventeen and 75/100 Soles);

On the application of the mitigating condition of responsibility for infractions

That, as previously noted, the Issuer stated in its defenses that it assumed its responsibility expressly and in writing for the infraction subject to charges; therefore, in application of the fifty percent (50%) reduction, by virtue of the recognition of responsibility within the deadline for defenses according to numeral 1 of letter a) of article 26 of the Sanctions Regulation, concordant with letter a) of numeral 2 of article 257 of the TUO of the LPAG, it corresponds to apply to the Issuer a total fine of 22.94 UIT equivalent to S/ 117,208.88 (One Hundred Seventeen Thousand Two Hundred Eight and 88/100 Soles), and;

PERÚ Ministry of Economy and Finance

Being in accordance with what is established in numerals 14 and 36 of
article 43 of the Regulation of Organization and Functions of the Superintendency of the
Securities Market – SMV, approved by Supreme Decree No. 216-2011-EF;

RESOLVES:

Article 1º.- Declare that Unión de Cervecerías
Peruanas Backus y Johnston S.A.A. has incurred ten (10) infractions of a minor nature typified in numeral 3, inciso 3.1 of Annex I of the Regulation of Sanctions, approved by SMV Resolution No. 035-2018-SMV/01, for the late communication of the following information: (i) the material fact of the report of the position in financial derivatives as of September 30 of 2023, which had to be presented no later than October 16, 2023, (ii) the material fact of the report of the position in financial derivatives as of October 31, 2023, which had to be presented no later than November 15, 2023, (iii) the material fact of the report of the position in financial derivatives as of November 30, 2023, which had to be presented no later than December 18, 2023, (iv) the material fact of the report of the position in financial derivatives as of December 31 of 2023, which had to be presented no later than January 16, 2024; (v) the material fact of the report of the position in financial derivatives as of January 31 of 2024, which had to be presented no later than February 14, 2024, (vi) the material fact of the report of the position in financial derivatives as of February 29, 2024, which had to be presented no later than March 14 of 2024, (vii) the material fact of the report of the position in financial derivatives as of March 31, 2024, which had to be presented no later than April 12, 2024, (viii) the material fact of the report of the position in financial derivatives as of April 30, 2024, which had to be presented no later than May 15, 2024; (ix) the material fact of the report of the position in financial derivatives as of May 31, 2024, which had to be presented no later than June 17, 2024; and (x) the material fact of the report of the position in financial derivatives as of June 30 of 2024, which had to be presented no later than July 12, 2024.

Article 2º.- Sanction Unión de Cervecerías
Peruanas Backus y Johnston S.A.A. with a total fine of 22.94 UIT equivalent to S/ 117,208.88 (One Hundred Seventeen Thousand Two Hundred Eight and 88/100 Soles) for what is established 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 Single Ordered Text of Law No. 27444, General Administrative Procedure Law, approved by Supreme Decree No. 004-2019-JUS, within the deadline of fifteen (15) business days counted from the day following its notification, as it is a procedure of single administrative instance. In case this Resolution is not challenged, it may be benefited by the regime of reduction of the corresponding sanction.

Article 4º.- In case this Resolution is not
subject to challenge, it must be published on the “Institutional Page of the SMV on the Unique Digital Platform of the Peruvian State for Citizen Orientation (www.gob.pe/smv)”, in observance of what is established by numeral 1 of
article 7 of the “Policy on dissemination of normative projects, legal norms of

PERÚ Ministry of Economy and Finance

general character, early agenda and other administrative acts of the SMV”, approved by SMV Resolution No. 014-2014-SMV/01, and by what is established in the last paragraph of article 14 of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01.

Article 5º.- Transcribe this Resolution to
Unión de Cervecerías Peruanas Backus y Johnston S.A.A.

Carlos Rivero Zevallos
Adjunct Superintendent
Adjunct Superintendency of Market Conduct Supervision

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