Adjunct Superintendent Resolution on Market Conduct Supervision No. 016-2025-SMV/11

That, the IGCC –instructor body of the PAS to which
refers this case–, has brought to the knowledge of the Adjunct Superintendency of Supervision of Market Conduct of the SMV (hereinafter, SASCM), the administrative file No. 2024038005 with the aim of issuing a decision as the body

PERÚ Ministry of Economy and Finance
SMV
Securities Market
Superintendency
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 sanctioning body of first instance. 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 Concorded Single Text of its Organic Law, Decree Law No. 26126 (hereinafter, LOSMV), and the Single 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 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 first administrative instance, as appropriate to the type of the infractions evaluated whose compliance control corresponds to the referred Adjunct Superintendency. Likewise, the SASCM has the faculties to issue measures corrective tending to reverse the situation altered by the commission of the infraction;
2. That, regarding the two (2) charges referred to (i) the
omission in the presentation of the Annual Individual Audited Financial Statements and its corresponding audit report for the 2023 exercise; and, (ii) to the omission in the presentation of the Annual Report for the 2023 exercise, they correspond to two (2) administrative instances in accordance with article 15 of the Sanctions Regulation, and to what is established in item 26 of article 12 of the ROF-SMV, which establish that the Superintendent of the Securities Market resolves the appeals against the resolutions issued in first instance by the Adjunct Superintendent of the SASCM, with the exception of single-instance procedures;
II. FACTS, CHARGES AND DEFENSES OF THE ADMINISTRATED ENTITY
2.1 Facts
3. That, it was evaluated whether the Issuer complied or not with
presenting the Annual Individual Audited Financial Statements and its corresponding audit report for the 2023 exercise; and, the Annual Report for the 2023 exercise;
2.2 Charges
4. That, as a result of said evaluation, through
Letter No. 3937-2024-SMV/11.1 of September 11, 2024 (hereinafter, the Letter of Charges), charges were formulated against the Issuer for not presenting according to the regulations, the following:
(i) The Annual Individual Audited Financial Statements and its corresponding audit report for the 2023 exercise, which should have been presented by April 01 2024 2 ; however, they have not been presented to date.
(ii) The Annual Report for the 2023 exercise, which should have been presented by April 01

1 By Supreme Decree No. 020-2023-EF, published on February 10, 2023 in the Official Gazette El Peruano, the Single Ordered Text of the Securities Market Law, Legislative Decree No.
861 was approved.
2 It should be noted that the deadlines are subject to what is established in item 2 of article 145 of the Single Ordered Text of Law No. 27444, General Administrative Procedure Law, approved by Supreme Decree No. 004-2019-JUS (TUO of the LPAG), which states: “When the last day of the deadline or the determined date is an inactive day or for any other circumstance the public service on that day does function during normal hours, they are understood to be extended to the next business day.”

PERÚ Ministry of Economy and Finance
SMV
Securities Market
Superintendency
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; however, it has not been presented to date;
5. That, the omissions in the presentation of
financial information described above are classified as serious infractions in item 2.10 of item 2 of Annex I of the Sanctions Regulation;
2.3 Defenses and arguments
6. That, through a document presented on September 20, 2024,
the Issuer presented the corresponding defenses, as detailed below:
(i) The Issuer states that, through a document presented on March 27, 2024, it requested that, by exception, an additional deadline until May 31, 2024 be granted for the presentation of its annual individual audited financial statements and its annual report with their respective annexes, corresponding to the fiscal year 2023, because, by that date, it had not received the corresponding audit report from the auditing firm Gaveglio, Aparicio y Asociados Sociedad Civil de Responsabilidad Limitada (hereinafter, auditing firm). Regarding this, the Issuer indicates that this request was dismissed, disagreeing with the analysis carried out by the SMV: “(…) the objective criterion on which the SMV must base itself in this case to determine the granting of the additional deadline by exception for the presentation by the Company of its Annual Individual Audited Financial Statements and its Annual Report with its respective Annexes, corresponding to the Fiscal Year 2023, is the of proof of reality. In effect, as can be seen throughout the facts and grounds offered in the File of reference by the Company, the latter is not in conditions to present its Annual Individual Audited Financial Statements and its Annual Report (…), solely and exclusively due to the fact that to date it has not received the audit report from the Auditing Firm (…) due to reasons that do not originate in acts committed by the Company nor in omissions incurred by the Company in delivering and making available to the Auditing Firm all the information that has been requested to be able to prepare the referred audit report”. (ii) Likewise, the Issuer mentions the principle of culpability and indicates that: “(…) we maintain the position that the SMV has not evaluated this case based on the principle of culpability, carrying out - contrary to what the norm prescribes as a limit to the sanctioning function of the State - an assessment of objective administrative responsibility. That is, the argument used by the administration reduces itself to the mere verification of the result of a possible infraction, without taking into account a subjective analysis of the conduct of the alleged infringer”. Regarding this, the Issuer affirms that the SMV did not take into account the principle of culpability, since it would not have been valued that “(…) our Company does not have the capacity to present the referred information (…) due exclusively to facts outside our will (…) ”, so, in its understanding, it would be proven the existence of an extrinsic factor that would break the causal link

PERÚ Ministry of Economy and Finance
SMV
Securities Market
Superintendency
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 between the Issuer and the imputed conduct, constituting an exemption of administrative responsibility for fortuitous event.
On this matter, the Issuer subsumes the characteristics of the fact determined by a third party in the concrete case as shown below:
“a. Extraordinariness: The characteristic of extraordinariness in the present case is manifested in that the cause of the non-presentation of the Annual Individual Audited Financial Statements and the Annual Report (…) resides in the fact that the auditing society entrusted with elaborating these documents for our represented party did not fulfill its obligation to finish and send them to us. From a normative point of view, based on the Civil Code (which establishes that contracts are obligatory insofar as they have been expressed in them), the ordinary situation would have implied that the auditing society completed the elaboration of the Annual Individual Audited Financial Statements and the Annual Report within the deadline stipulated in the contract we signed with said company, and that, consequently, we would present said documents before the competent authority. b. Unpredictability: The auditing society contracted for the elaboration of Annual Individual Audited Financial Statements and the Annual Report corresponding to the Fiscal Year 2023 is one of the most prestigious in the market. In this sense, there were no indications suggesting that said company would not fulfill the elaboration of these documents within the planned deadline, since it did not communicate to us that it would not be able to complete the audit process of the aforementioned Financial Statements prior to the end of March 2024.
c. Irresistibility: It is important to highlight that our company does not possess the
experience, nor the necessary capacities nor the legal authorization, since it does not have in its corporate object the activity of auditing Financial Statements, to elaborate by itself the Annual Individual Audited Financial Statements and the Annual Report corresponding to the Fiscal Year 2023. Therefore, we depend on the contracted auditing society completing the elaboration of said documents.”. (iii) Additionally, the Issuer mentions that the PAS followed under File No. 2023043611, initiated for the non-presentation of annual individual audited financial statements and its annual report corresponding to the 2022 exercise, would be linked to the present PAS since it would imply the same infringing fact, so it considers that their accumulation and treatment in a single file would be appropriate in order to avoid delays that could affect its right of defense. Furthermore, the Issuer adds that it must be taken into account that the start of the present PAS would violate the principle of continuation of infractions, since it would be in the case contained within letter a) of item 7 of article 248 3 of the Single Ordered Text of Law No. 27444, Law of the General Administrative Procedure (hereinafter, TUO of the LPAG), as indicated below:
“Article 248.- Principles of the administrative sanctioning power The sanctioning power of all entities is additionally governed by the following special principles:
(…)

PERÚ Ministry of Economy and Finance
SMV
Securities Market
Superintendency
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 This normative precept establishes taxatively that, for the proceeding of imposition of sanctions for infractions of a continuous nature, it is necessary that at least thirty (30) business days have elapsed since the imposition of the last sanction, and that it is accredited that the administrated entity was requested to demonstrate the cessation of the infraction within said deadline. (…) That, as has been pointed out in section xvii of the present document, the appeal presented in File No. 2023043611 has not yet been resolved, so our represented party is immersed in the case a) of item 7 of article 248 of the TUO of the LPAG”;
7. That, through Supreme Decree No. 004-2019-JUS,
the 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, item 3) of article 248 of the TUO of the LPAG, indicates 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) The 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 not of intent in the conduct of the infringer;
8. That, the charges formulated 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;
9. That, in observance of what is provided by item
5 of article 255 of the TUO of the LPAG, through Letter No. 5226-2024-SMV/11 of November 18 2024, the Report was sent to the Issuer, so that it could formulate its arguments within a deadline of five (5) business days;
10. That, through a document of November 25, 2024,
the Issuer presented its arguments to the Report, indicating that it lacked apparent motivation and violates the principle of veracity, which are transcribed in a summarized manner:
(i) The Issuer indicated that “(…) it is fundamental to initiate (…) reiterating that the non-compliance in the presentation of the Annual Individual Audited Financial

Continuation of infractions.- To determine the proceeding of the imposition of sanctions for
infractions in which the administrated entity incurs in a continuous manner, it is required that at least thirty (30) business days have elapsed since the date of the imposition of the last sanction and that it is accredited that the administrated entity was requested to demonstrate that it had ceased the infraction within said deadline. The entities, under penalty of nullity, cannot attribute the case of continuity and/or the imposition of the respective sanction, in the following cases:
a) When an administrative appeal filed within the deadline against the administrative act by which the last administrative sanction was imposed is pending. (…)

PERÚ Ministry of Economy and Finance
SMV
Securities Market
Superintendency
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 Statements Annual and the Annual Report, along with their respective annexes, corresponding to the Fiscal Year 2023, had its origin and fundamental cause in the untimely and arbitrary decision of the auditing firm Tanaka, Valdivia & Associates S.C.R.L., (…) to terminate the Audit Services Contract on January 3, 2023, that is, at a time when the referred auditing society was in the full process of auditing the referred Annual Individual Financial Statements of the 2022 exercise (…) (…) from the moment that this complex situation occurred for Michell y Cía., the latter acted with due diligence and proactivity in the face of the untimely resignation of its initial auditing society (…) proceeding to hire the auditing company Gaveglio, Aparicio y Asociados (PwC), only six (6) calendar days after the date on which the untimely and arbitrary resolution of Tanaka, Valdivia & Associates S.C.R.L. occurred, since the hiring of PwC was carried out on January 10, 2023. (…) that is, almost nine (09) months before the maximum deadline for the presentation of the Annual Individual Audited Financial Statements and the Annual Report corresponding to the Fiscal Year 2023. Consequently, what is affirmed (…) regarding that adequate precautions would not have been taken for the timely designation of the auditing society PwC, (…) as has been evidenced, Michell y Cía. acted timely to hire in a prudent time a new Auditing Society to be in charge of the audit (…) of the Annual Individual Financial Statements of the 2023 exercise (…). (…) it is appropriate to underline that Michel y Cía. adopted various actions aimed at demonstrating adequate diligence, among which stand out the requests for extension of deadlines for the presentation of financial information, which contemplated solid arguments regarding the impossibility of being able to present the Annual Audited Individual Financial Statements and Annual Report of the Fiscal Year 2023 within the deadline for such effect fixed by the applicable legal regulation, being the case that the referred solid arguments are duly detailed both in the section of grounds of fact of this document as in the defense document presented on September 20, 2024. However, such PROACTIVE ACT AND WHICH DENOTES THE COMPLIANCE OF DUE DILIGENCE OF MICHELL Y CÍA. BEFORE THE FACTS OCCURRED, HAVE NOT BEEN VALUED by the Instructor Body, which reveals an erroneous interpretation of the essential elements that configure the present case.” (ii) Additionally, the Issuer argues that “(…) throughout the entire administrative sanctioning procedure, no exhaustive analysis has been carried out nor has it been presented – as corresponds according to law – any evidence that demonstrates that Michell y Cía. has incurred negligent conduct (…). (…) since the obligation of Michell y
Cía. is clearly delimited and is limited exclusively to the hiring of an auditing society and, in its case, to the remission of the information that said entity requires for the elaboration of the Annual Individual Audited Financial Statements and the Annual Report corresponding to the 2023 exercise. At no moment can any responsibility be attributed to Michell y Cía. for the acts or

PERÚ Ministry of Economy and Finance
SMV
Securities Market
Superintendency
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 omissions of a third party, in this case, the auditing society PWC.”
(iii) On the other hand, the Issuer questions “(…) in the processing of the present administrative sanctioning procedure, is there any evidence that evidences an improper or negligent act of Michell y Cía. in the fulfillment of its obligation to deliver information to the auditing society?”
Regarding this, subsequently, the Issuer itself responds indicating that “(…) NO, since no additional instruction actions have been executed that could evidence any negligent act on the part of Michell y Cía. (…) In effect, when Michell y Cía. alleged that the cause of the non-presentation of the Annual Individual Audited Financial Statements and the Annual Report corresponding to the Fiscal Year 2023 was due to a third party (…) in the framework of the instruction actions to be developed during a administrative sanctioning procedure, it should have requested information from said third party, that is, from the auditing society PwC. (…) In that way, (…) it would have been possible (…) to verify the truth of the arguments alleged in the defense documents and corroborate if indeed such circumstance existed or not that justifies the situation.”
III. ISSUES TO BE DETERMINED
11. That, in the present PAS it corresponds to determine the
following:
(i) If the Issuer incurred or not in the infractions indicated in the Letter of Charges and Report; (ii) If it corresponds or not to impose a sanction on the Issuer;
IV. ANALYSIS
4.1 Applicable Normativity
12. That, article 31 of the TUO LMV provides that: “What
is provided in the previous article does not relieve the issuer of the timely delivery to the SMV and, if applicable, to the respective stock exchange or entity responsible for the management of the centralized mechanism, of the information that one or the other requires from it and, necessarily, the one indicated below:
a) Its financial statements and indicators, with the minimum information that the SMV generally indicates, with a frequency not greater than quarterly; and, b) Its annual report, with the minimum information that the SMV generally establishes. (…) ”. (Underline added);
13. That, regarding the deadline for the approval and
presentation of annual individual audited financial statements, article 13 4 of

4 Article 13.- Approval and deadline for presentation of annual individual or separate financial statements
13.1 The annual individual or separate audited financial statements have a closing date of December 31.
13.2 The annual individual or separate financial statements and the corresponding audit report
must be approved by the general shareholders' meeting or equivalent body of the obligated subject or that is authorized according to the legislation applicable to it.

The Norms on Preparation, Presentation and Dissemination of Financial Statements and Annual Report and Management Report applicable to entities supervised by the SMV, approved by SMV Resolution No. 013-2023-SMV/01 (hereinafter, Norms on Preparation, Presentation and Dissemination of Financial Statements), establishes that issuers with securities registered in the RPMV must present their audited annual individual financial statements with their corresponding audit report on the day they have been approved by the corresponding body, with the deadline for these purposes being up to March 31 of each year;

That, for its part, Article 20.5 of the Norms on Preparation, Presentation and Dissemination of Financial Statements establishes that the annual report must be presented on the day it has been approved by the corresponding body, with the deadline for these purposes being up to March 31 of each year;
That, item 2.10 number 2 of Annex I of the Sanctions Regulation, states that it constitutes a serious offense: "To not communicate important facts or to not present audited individual or consolidated financial information, individual or consolidated interim financial statements, management report or special audit report and annual reports". (Underline added);
That, according to Article 34 of the Sanctions Regulation 6, serious offenses are punishable by a fine of not less than twenty-five (25) UIT and up to fifty (50) UIT;

4.2 Evaluation of the case

That, in administrative file No. 2024038005, which contains the documentation of the present PAS, it is appreciated that through Memorandum No. 2239-2024-SMV/11.1 of June 6, 2024 (File

13.3 In the case of issuers, the annual individual or separate financial statements with their corresponding audit report must be presented to the SMV on the date of their approval for their respective dissemination.
13.4 March 31 of each year is the deadline date for the presentation and dissemination of the annual individual or separate financial statements with their corresponding audit report. Regarding collective fund management companies, the deadline date for said period is April 30 of each year.

5 Article 20.- Approval and presentation deadline
20.1 The annual report must be approved by the general shareholders' meeting or equivalent body of the obligated subject or that is authorized, according to the legislation applicable to it.
20.2 In the case of issuers, the annual report must be presented and disseminated to the SMV on the date of its approval.
20.3 March 31 of each year is the deadline date for the presentation and dissemination of the annual report. Regarding collective fund management companies, the deadline date for said period is April 30 of each year.

6 Article 34.- Sanctions for serious offenses
For the commission of serious offenses, the offender is imposed one of the following sanctions:
a) Fine of not less than twenty-five (25) UIT and up to fifty (50) UIT; b) Suspension of the negotiation of securities for up to one (1) year or of the placement of the public offer; c) Suspension of the operating authorization or of the representatives of agent societies, for up to twenty (20) days; and, d) Suspension of the persons referred to in item i) of Article 343 of the LMV and the corresponding regulations, for up to thirty (30) days.

PERU Ministry of Economy and Finance
SMV
Securities Market Superintendence
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 No. 2024023729), the General Superintendence of Conduct Supervision (hereinafter, IGSC) —an organ of the SMV that has within its functions and powers, the supervision of compliance with the norms applicable to issuers with securities registered in the RPMV, evaluating the indications of possible infractions, and sends, for its consideration, the respective indications of infringement reports, to the IGCC—, sent to the IGCC, the result of its evaluation, and specifically what refers to the present case;

That, it must be kept in mind that the procedures and legal forms with which the IGSC conducts its inspection and/or supervision activity and upon concluding it with an indications of infringement report, determine that its pronouncement or opinion on a specific supervision topic —which can even contain a decision, such as, 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 indications of infringement report of the IGSC, is not binding for the IGCC, as established in the second paragraph of Article 9 of the Sanctions Regulation 7;
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 the present Resolution, two (2) other organs of the SMV, functionally independent from each other and from this Office; first the IGSC that on its occasion reported the indications of infringement, through Memorandum No. 2239-2024-SMV/11.1, and then the IGCC that, as a result of its evaluation, formulated the Notice 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 mentioned charges, it being precise to indicate that by the nature of the same, as has been previously indicated, it will be a first instance administrative decision;
That, prior to the corresponding analysis, it must be pointed out that the formulation of the present charges was based on the fact that the Issuer omitted to present the Audited Annual Individual Financial Statements and Annual Report corresponding to the 2023 exercise, indicated in section 2.2 of the present Resolution;

7 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 administrator; 2) Recommendation of improvements or corrections of the activity developed by the administrator; 3) The warning of the existence of non-compliance 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.

8 Article 9.- PRELIMINARY INQUIRIES AS A CONSEQUENCE OF SUPERVISION ACTIONS (...)
When said organs conclude that there are sufficient indications of possible administrative infractions, they send the corresponding reports to the General Superintendencies of Compliance, which determine whether or not it corresponds to start an administrative sanctioning procedure. If this is the case, the General Superintendencies of Compliance may carry out additional inspections or investigations of the reported indications. 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 Superintendence of Investigation and Innovation, a dependency that if there are sufficient indications of possible administrative infractions will determine whether or not it corresponds to start an administrative sanctioning procedure. (...).

21. That, the timely presentation of financial information and annual report by issuers of securities registered in the RPMV constitute fundamental obligations closely linked to the transparency of information in the securities market, so their non-compliance evidently harms transparency, which is considered a protected legal good by the SMV;

22. That, regarding the defenses and the allegations that repeat the arguments presented by the Issuer, it must be indicated the following:

1. Requests for exception presented before the SMV
The Issuer states that it presented to the SMV a request to be granted, by exception, an extension of the deadline for the presentation of its audited annual individual financial statements and annual report corresponding to the 2023 exercise until May 31, 2024, basing the following:

"1. That at the date the Examination of the Financial Statements by our external auditors is in progress;
2. That while the referred audit work does not finish we will not have the Report of the Audited Annual Individual Financial Statements 2023, to comply with its presentation to the Securities Market."

It is worth indicating that the referred financial information and annual report had to be presented to the SMV at the latest until April 1, 2024; however, this request for exception was presented on March 27, 2024, close to the expiration of the obligations.

On this particular matter, and from the review of file No. 2024012994 generated as a consequence of the exception request, it is noticed that this was denied through Office No. 52-2024-SMV/02 of April 25, 2024, due to the fact that the information and documentation presented by the Issuer to support its request for exception did not constitute sufficient evidence on the existence of grounds of fact and of law for the requested exception to be granted. It is worth indicating that, against this decision, the Issuer filed an appeal in file No. 2024020021, which was reconducted as a reconsideration appeal, the same which was declared unfounded through Office No. 64-2024-SMV/02 of May 27, 2024.

Subsequently, through a new administrative request of May 31, 2024 9; the Issuer again requested to be granted, by exception, a new additional deadline for the presentation of the audited annual individual financial statements and annual report corresponding to the 2023 exercise, in order to be able to present them until July 31, 2024.

Regarding this new request, the SMV through Office No. 76-2024-SMV/02 of June 24, 2024, declared the deadline exception petition inadmissible, since it was presented outside the deadline established in articles 13 and 20 of the Norms on Preparation, Presentation and Dissemination of Financial Statements for the

9 File No. 2024024575.

In accordance with what is exposed, it is observed that the Issuer exhausted the procedural route to question what was resolved regarding its requests for extension of the deadline, therefore, it knew that the non-compliance in the presentation of the financial information and annual report would generate the present PAS, in the measure that it was non-complying with what is established in the Norms on Preparation, Presentation and Dissemination of Financial Statements.

Principle of culpability
Regarding what is alleged by the Issuer regarding the fact that the SMV has not taken into account the principle of culpability, in the measure that the non-presentation of the financial information is due exclusively to facts alien to its will and that the breaking of the causal link between the Issuer and the imputed conduct would be proven, it is opportune to mention that the principle of culpability implies the presence of intent or punishable negligence as constitutive elements of the infringement, which are analyzed to determine the responsibility or not of the offender. In that line, the Foundation 12 of the sentence issued by the Constitutional Tribunal in File No. 01873-2009-PA/TC indicates that the referred principle: "(...) establishes that the sanctionable action must be imputed by title of intent or fault, which implies the prohibition of objective responsibility; that is, that a sanction can only be imposed if the prohibited conduct and its consequence are legally provided for".

According to the above, culpability is valued at the moment of determining the sanction to be imposed, that is, if one has acted with intent or punishable negligence; however, it can also be analyzed in those cases, where the non-compliance goes beyond intent or negligence, that is, if it occurs as a consequence of the action of a third party, such as the one the Issuer intends to base its defenses on.

In these terms, it is not admissible to transfer the obligation of the timely presentation of the audited annual individual financial statements and annual report corresponding to the 2023 exercise, to its audit society, first because the Issuer knows perfectly the dates of its obligation in the presentation of the referred information, and second, it implies taking the precautions of the case so that its audit society is designated on an opportune date, precisely for the compliance of the presentation deadlines, so, its non-opportune designation by the Issuer falls within punishable negligence, consequently, force majeure or fortuitous event cannot be alleged, which as has been indicated we are rather before the omission of the due attention, which would demonstrate inaction or carelessness on the part of the Issuer. Being so there is no breaking of the causal link, since, the responsibility falls on the Issuer who is the obligated party before the market. That is, there is an intrinsic relationship between the injury to the legal good or the damage with the active or omissive conduct deployed by the Issuer. It is worth adding, that according to what was agreed through board session, its audit society was designated on July 3, 2023 10, as appreciated in the following Image No. 1:

10 File No. 2023028799.

Consequently, force majeure as an exemption of responsibility alleged by the Issuer and which is collected in item a) of Article 27 of the Sanctions Regulation, which states: "Fortuitous event, force majeure or other exceptional situation that, at the discretion of the SMV, were comparable to fortuitous event or force majeure duly proven", is not applicable in accordance with what has been indicated above.

In addition to that, in the measure that the administrative regulation has not given content to force majeure as an exemption of responsibility, it must resort to the sources of the general administrative procedure, such as laws and provisions of equivalent hierarchy (number 2.3 of Article V of the TUO of the LPAG), the same which is developed in article 1315 of the Civil Code.

In that sense, it must be considered that there will only be absence of responsibility for force majeure, when an extraordinary event is configured that obeys strictly to a fact carried out by a third party; that said fact has the character of irresistible; and, whose occurrence is impossible to prevent through acts of foresight, which as has been indicated, has not occurred in the present case.

In accordance with the above, it can be indicated that the fact that the circumstances that prevent complying with the obligation of submission of information prolong themselves means necessarily that an issuer can adopt prevention measures to comply with said obligation.

On the other hand, regarding the elements referred to in article 1315 of the Civil Code, it is opportune to point out that in relation to the existence of an extraordinary event, it is necessary to point out that it is considered that the argument raised by the Issuer is not sufficient to demonstrate that there is a factor extrinsic to its will, more so when the issuer is responsible for the terms of the contracting of the audit society in charge of auditing its annual individual financial statements, as well as to act diligently in the realization of an opportune follow-up of the compliance of the stipulated obligations.

Additionally, it must be taken into account that it is the responsibility of the Management or equivalent body of the Issuer the elaboration and presentation of the un-audited financial statements on which the audit work is based; as well as to provide all the information required by the audit society in an opportune and diligent manner; consequently, said situation was in the sphere of domain of the Issuer, so it corresponded to deploy all the necessary acts so that the audit service culminates in the agreed deadline and can present to the SMV the informations subject of charges.

Regarding the unpredictable element, it must be taken into account what is indicated by the Issuer in the writing presented on April 16, 2024, processed in File No. 2024012994, in which it indicated the activities pending to be carried out by the audit society, which demonstrate that it had knowledge that the audit society would exceed the deadline for the delivery of its respective report, not being an unexpected and unpredictable circumstance.

Regarding the irresistible element, it also cannot be alleged, since it must be taken into account that in the audit contract that the Issuer signed with the audit society, the delivery date of the audit report was agreed, which should suppose a prudent and reasonable time and consider that the deadline for the presentation of the audited annual individual financial statements and its corresponding audit report of the 2023 exercise, as well as the annual report of the 2023 exercise was until April 1, 2024.

According to what is indicated, it is observed that through the important fact of July 3, 2023, the Issuer indicated that the initial date of the audit service was September 11, 2023 (coincides with the date of designation of the audit society), so considering the date of presentation of the financial information subject of charges, the service would last eight (8) months, approximately.

In that sense, that period of time or similar would be considered sufficient for the audit service of the financial statements to culminate satisfactorily, provided that the Issuer has acted diligently deploying all the necessary mechanisms for said effect. However, in the present case, no evidence of these actions carried out by the Issuer has been presented.

In accordance with the above, although the Issuer alleges that the audit society has not sent its respective report as a circumstance for an exemption of responsibility by force majeure or fortuitous event to apply, it must be taken into account that it had a prudent and reasonable time to deliver its audit report, so this event that it alleges as foundation of its non-compliance subject of

11 See link: https://www.smv.gob.pe/ConsultasP8/temp/CartaTI0003_6_20230703160519.pdf

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The circumstances alleged by the Issuer as a situation that generated the non-compliances do not meet the requirements previously indicated for a circumstance of force majeure or fortuitous event to constitute an exemption from liability. On the contrary, it is observed that the Issuer merely argues a circumstance beyond its control, referring to the fact that the audit firm had not yet submitted its report.

In this sense, the circumstances alleged by the Issuer as a situation generating the non-compliances do not meet the aforementioned requirements to configure an exemption from liability due to force majeure or fortuitous event.

It must be clarified that while the burden of proof lies with the administration, for the purpose of attributing to regulated entities the infractions that serve as the basis for sanctioning them, in the event that the administration has proven the commission of the infraction, it corresponds to the regulated entity to prove the facts excluding their responsibility if they allege them, as Nieto García points out; referring to the jurisprudence of the Spanish Supreme Court: "(...) with regard to the burden of proof in any punitive action, it is the sanctioning body that is responsible for proving the facts that are to serve as the basis for the possible infraction, while it falls to the accused to prove the facts that may result in the exclusion of their responsibility". (Underline added).

In this sense, since the administration has the burden of proving the facts constitutive of the infraction, in the present case, regarding infractions for the non-submission of periodic information, these have been accredited through the review of the SMV information systems, in addition to the fact that the financial information subject to charges has not been submitted to date.

In conclusion, the Issuer indicates that the non-compliances are due to the fact that the audit firm has not submitted its respective report, but this situation by itself does not explain the reasons for the delay in its issuance, in addition the Issuer has not been able to prove that it is in a situation of exemption from liability because it has not presented evidentiary means describing the actions or adequate measures adopted by the Issuer to prevent the audit services from being prolonged over time, so it is not applicable to exempt its responsibility, since these arguments have not been able to prove the occurrence of a force majeure circumstance.

Having evaluated each of the Issuer's defense arguments, which are detailed above, this Assistant Superintendency reasonably maintains that the conduct constitutive of the infraction has been accredited for not having submitted the audited annual individual financial statements and their corresponding audit report for the 2023 fiscal year, as well as the annual report for the 2023 fiscal year; consequently, the administrative responsibility of the Issuer in the present PAS is determined and the applicable sanction must be determined.

Request for accumulation and principle of continuation of infractions

Regarding these defenses, it is appropriate to point out the following:

a) With reference to the request for accumulation (Files Nos. 2023043611 and 2024038005)

The Issuer has raised, as part of its defenses, the request to accumulate the present PAS (which is in File No. 2024038005) with the PAS in File No. 2023043611, in which charges have been imputed to it for

not presenting within the established deadline the audited annual individual financial statements and the corresponding annual report for the 2022 fiscal year, since it considers that there is a relationship and connection between both.

On this matter, article 160 of the TUO of the LPAG provides that "[t]he authority responsible for the instruction, on its own initiative or at the instance of the regulated entities, disposes through an unappealable resolution the accumulation of the procedures in progress that have connection". (Underline added).

Complementarily, paragraph c) of article 16 of the Sanctions Regulation contemplates that "The General Inspectorates of Compliance, on their own initiative or at the request of the regulated entities, may dispose through an unappealable resolution, the accumulation of the sanctioning procedures in progress that have connection and are in the same procedural state or proceed to their separation when necessary". (Underline added).

In this framework, it corresponds to evaluate whether the PAS of files Nos. 2023043611 and 2024038005 have connection and are in the same procedural state. For this effect, the following comparative table has been prepared:

Table No. 01: Current state of sanctioning administrative procedures

FILE NO. 2023043611	FILE NO. 2024038005
Regulated Entity:; Michell y Cía. S.A.	Regulated Entity:; Michell y Cía. S.A.
Charges Imputed:; 1. Omission in the presentation of the audited annual individual financial statements for the 2022 fiscal year.; 2. Omission in the presentation of the annual report for the 2022 fiscal year.	Charges Imputed:; 1. Omission in the presentation of the audited annual individual financial statements for the 2023 fiscal year.; 2. Omission in the presentation of the annual report for the 2023 fiscal year.
Norm Presumably Not Observed:; Articles 2, 6 and 12 of the Norms on Preparation and Presentation of Financial Statements and Annual Report by Entities Supervised by the Superintendency of the Securities Market, approved by SMV Resolution No. 016-2015-SMV/01 12.	Norm Presumably Not Observed:; Articles 13 and 20 of the Norms on Preparation, Presentation and Dissemination of Financial Statements and Annual Report and Management Report applicable to entities supervised by the SMV, approved by SMV Resolution No. 013-2023-SMV/01.

12 It should be specified that the obligations contained in the aforementioned articles are maintained in articles 13 and 20 of the Norms on Preparation, Presentation and Dissemination of Financial Statements.

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| Current State:; Appeal phase, in charge of the Superintendent of the Securities Market | Current State:; Sanctioning phase, in charge of the SASCM. |

As is evident from the previous table, both PAS have connection with each other, since the charges imputed to the Issuer refer to the alleged non-observance of norms on the presentation of audited annual individual financial statements and annual reports. However, it must be pointed out that both PAS are not in the same procedural state, since file No. 2023043611 is in the sanctioning phase, currently in charge of the Superintendent of the Securities Market due to the appeal filed by the Issuer; while File No. 2024038005, in the sanctioning phase, is in charge of this Assistant Superintendency.

According to what is established in article 160 of the TUO of the LPAG, and in concordance with paragraph c) of article 16 of the Sanctions Regulation, the accumulation of PAS is only appropriate in the instruction stage, in charge of the General Inspectorates of Compliance of the SMV. It is not appropriate in the sanctioning stage, which is subsequent to the instruction stage, as alleged by the Issuer in the present PAS.

In this sense, based on what is established by paragraph c) of article 16 of the Sanctions Regulation, it does not correspond to accumulate the PAS in files Nos. 2023043611 and 2024038005 and, consequently, this aspect of the Issuer's request is dismissed.

b) With reference to the application of the principle of continuation of infractions mentioned by the Issuer:

Regarding this argument raised by the Issuer, in the sense that this principle establishes taxatively that, for the appropriateness of imposing sanctions for continuous infractions, it is necessary that at least thirty (30) business days have elapsed since the imposition of the last sanction, and that it is accredited that the regulated entity was requested to demonstrate the cessation of the infraction within said period, we consider it appropriate to point out the following:

Paragraph 7 of article 248 of the TUO of the LPAG describes the principle of continuation of infractions, according to the following terms: "To determine the appropriateness of imposing sanctions for infractions in which the regulated entity incurs continuously, it is required that at least thirty (30) business days have elapsed since the date of the imposition of the last sanction and that it is accredited that the regulated entity was requested to demonstrate that the infraction has ceased within said period. Entities, under penalty of nullity, cannot attribute the case of continuity and/or the imposition of the respective sanction, in the following cases:

a) When an administrative appeal filed within the deadline against the administrative act by which the last administrative sanction was imposed is pending.
(…)".

The Issuer has alleged this principle of continuation of infractions, since to date it has filed an appeal against the Resolution of the Assistant Superintendent of the SMV No. 036-2024-SMV/11 of June 26, 2024, by which the Issuer was sanctioned with a total fine of 50 UIT for having incurred two (2) infractions of a serious nature typified in paragraph 2.10, numeral 2 of Annex I of the Sanctions Regulation, that is, for the non-presentation of the Audited Annual Individual Financial Statements and the Annual Report corresponding to the 2022 fiscal year.
On the other hand, the present PAS responds to the omission by the Issuer, but in this case, for the non-presentation of the audited annual individual financial statements and the annual report corresponding to the 2023 fiscal year, whose omission persists to date. Therefore, we are facing two (2) totally distinct infractions.
Regarding the principle of continuation of infractions, which the Issuer quotes verbatim, insofar as it is a principle that has been developed at the level of Peruvian administrative doctrine, it is appropriate to take into consideration what is stated by José Jiménez 13, who points out that this principle would aim to "(...) avoid a situation of excessive punishment with regard to a state of illegality permanently attributable to the individual, for example, for not having a business license or a similar enabling title to carry out an economic activity. In accordance with this principle, the individual could not be sanctioned for each day of non-compliance, but rather the procedure established in the norm should be followed. According to the current text of the norm, it would be a case of imposition of successive sanctions for the commission of an infraction whose effects persist over time".
That is, as described, this principle aims to protect against the imposition of successive sanctions for the commission of an infraction, limiting the punitive activity of the public administration, in the face of a non-compliance over time by the sanctioned regulated entity. This is so, since the application of this principle would apply to so-called permanent infractions, as stated by Víctor Baca, cited by Jiménez Alemán. On this matter, Víctor Baca specifies 14: "(...) In reality, as has been argued in other cases of similar regulations [...], the norm

13 Jiménez Alemán, J. A. (2018). Notes on the concurrence of infractions in Sanctioning Administrative Law: Peruvian case. Derecho & Sociedad, (50), p. 69. Retrieved from https://revistas.pucp.edu.pe/index.php/derechoysociedad/article/view/20374 14 Baca Oneto, V. S. (2011). The Prescription of Infractions and its Classification in the General Administrative Procedure Law (In Special, Analysis of the Cases of Permanent and Continued Infractions). Derecho & Sociedad, (37), p. 273. Retrieved from https://revistas.pucp.edu.pe/index.php/derechoysociedad/article/view/13178

refers to permanent infractions, which are those that can properly cease".

Centering the issue, considering that the principle of continuation of infractions applies to permanent infractions, Víctor Baca develops the concept of permanent infractions 15, specifying that: "These are infractions where the regulated entity remains in an infringing situation, the maintenance of which is attributable to it. Unlike the previous case, it is not the legal effects of the infringing conduct that persist, but the conduct itself. It is the case, for example, of someone who operates without a license (which would be different from the typified case of opening or building without a license, which is consummated at a specific moment, after which only its effects persist). In these cases, it is admitted that the prescription occurs from when the infringing conduct ceases, assimilating to this certain cases of omission infractions, where the infringing conduct (for example, not delivering certain information) remains as long as the duty to act remains. Some jurisprudence refers to this type of infractions as 'continuous', which makes it especially important to distinguish them from 'continued' infractions".
To add further, the Practical Guide on the sanctioning administrative procedure 16, approved by Directorial Resolution No. 002-2017-JUS/DGDOJ states the following: "It should be indicated that this principle applies in the face of an illicit conduct that does not constitute an isolated and concrete act but a durable and constant activity. In other words, it is a conduct repeated by a will that endures in which no concourse situation occurs, but a unitary progression with repetition of acts".
This Assistant Superintendency shares the opinion of the IGCC regarding the omission in the presentation of the Audited Annual Individual Financial Statements and the Annual Report, which constitute permanent infractions, that is, by their omissive nature, they persist over time, — as long as the Issuer does not comply with executing the obligations to do established in the Norms on Preparation, Presentation and Dissemination of Financial Statements —, so they only cease when what is established by the administration has been complied with, therefore, in application of what is established by paragraph 7 of article 248 of the TUO of the LPAG, the infractions only cease with the presentation of the information that was the subject of the sanctioning procedure that is under appeal before the superior hierarchical authority.

It should be added that in this case, it is evident that the Issuer on August 14, 2024, has presented the Audited Annual Individual Financial Statements plus the Annual Report corresponding to the 2022 fiscal year, and therefore, regardless of the sanction imposed by the Resolution of the Assistant Superintendent of the SMV No. 036-2024-SMV/11, and that it is under appeal, it is considered that the infractions subject to sanction have ceased.

15 Ibid, p. 268.
16 MINJUS. Practical Guide on the sanctioning administrative procedure. 2nd edition, approved with Directorial Resolution No. 002-2017-JUS/DGDOJ of June 07, 2017, p. 25.

Likewise, the aforementioned resolution ordered in its "Article 4th.- Dictate as a corrective measure that MICHELL Y CIA. S.A., in accordance with article 21 and paragraph 25 of Annex XX 'On Corrective Measures' of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01, comply with the obligation to present the Audited Annual Individual Financial Statements and the Annual Report corresponding to the 2022 fiscal year, within the period of thirty (30) business days counted from the day following the notification of the present Resolution"; corrective measure that the Issuer has complied with.

The present PAS— regarding the non-presentation of the Audited Annual Individual Financial Statements and the Annual Report corresponding to the 2023 fiscal year —, deals with infractions distinct from those that were the subject of sanction, therefore the principle of continuation of infraction is not applicable, insofar as they are distinct PAS, autonomous and whose legal consequences are distinct, since they not only correspond to a different economic year, but also their presentation deadlines are distinct; consequently, we are not facing the imposition of successive sanctions for the commission of the same infractions, which is what this principle prohibits.
Likewise, it is worth reiterating that omission infractions have a permanent nature, insofar as the detected anti-juridical situations persist over time, as long as the Issuer does not comply with executing the obligations to do established in the Norms on Preparation, Presentation and Dissemination of Financial Statements.

According to the arguments developed, this Assistant Superintendency maintains that in the present PAS, the principle of continuation of infractions is not supportable as a means of defense, due to the fact that the Issuer was previously sanctioned for non-compliance in the presentation of its audited annual individual financial statements and their corresponding audit report for the 2023 fiscal year, as well as its annual report corresponding to the same 2023 fiscal year, but on the contrary this principle applies to the effects generated by the non-compliance over time of these obligations individually, but it is not possible to overlap through this principle the consequences of other non-compliances that have their own independence;

That, having evaluated each of the Issuer's defense arguments, which are detailed above, this Assistant Superintendency reasonably maintains that the conduct constitutive of the infraction has been accredited for not having submitted the audited annual individual financial statements and their corresponding audit report for the 2023 fiscal year, as well as the annual report corresponding to the same 2023 fiscal year to the date of the imputation of charges, whose non-compliance persists to date; consequently, the administrative responsibility of the Issuer in the present PAS is determined and the applicable sanction must be determined;

V. DETERMINATION OF THE SANCTION

That, the non-compliance referred to the non-presentation of financial information and annual report are typified in paragraph 2.10 of numeral 2 of Annex I of the Sanctions Regulation, which states that it constitutes

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serious infraction: “Not communicating facts of importance or not presenting individual or consolidated audited financial information, individual or consolidated interim financial statements, management report or special audit report and annual reports”. (Underlining added);
25. That, regarding sanctions, according to Article 34 of the Sanctions Regulation, serious infractions are punishable with a fine of not less than twenty-five (25) UIT and up to fifty (50) UIT;
26. That, having determined the commission of the imputed infractions, it corresponds to evaluate the sanction in accordance with Article 25 of the Sanctions Regulation, concordant with numeral 3) of Article 248 TUO of the LPAG and Article 344 of the TUO of the LMV, which develop the sanction graduation criteria: (i) the issuer's sanction history, (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 not of intent in the conduct of the offender (hereinafter, the Sanction Criteria);

SANCTION CRITERIA
27. That, regarding the gravity of the damage to the public interest and/or protected legal good, it must be indicated that the timely presentation of financial information and annual report has the purpose of allowing 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 good 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;
28. That, regarding sanction history, Article 25 of the Sanctions Regulation establishes that the offender's history consists of sanctions imposed by the SMV that became final within four (4) 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 history. In application of this criterion, it has been verified that the Issuer has no sanction history, according to what was evaluated in the Report;
29. That, regarding recidivism for the commission of the same infraction, literal b) of Article 25 of the Sanctions Regulation establishes that a final sanction imposed by the SMV within the period of one (1) year prior to the commission of the infraction to be sanctioned is taken into account. Regarding this, from the verification carried out in the SMV Sanctions System, it has been noted that the Issuer does not have the status of a recidivist;
30. That, regarding the circumstances of the infraction, we must point out that from the verification of the information disseminated by the issuers on the Institutional Page of the SMV in the Digital Platform of the Peruvian State for Citizen Orientation 17, it is noted that to date the Issuer has not presented the individual audited annual financial statements and its corresponding audit report for the 2023 exercise, nor the annual report for the 2023 exercise;
31. That, regarding the economic damage caused and its repercussion on the market, it must be noted that in the present case it has not been evidenced that the non-compliance produced a quantifiable damage, understood as an economic damage caused to one or more investors;
32. That, as for the illicit benefit resulting from the commission of the infraction, it has not been accredited that as a consequence of the infractions committed by the Issuer, an illicit benefit has been obtained or generated;
33. That, on the other hand, regarding the probability of detection of the infraction, we must indicate 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;
34. That, regarding the existence or not of intent in the conduct of the offender, there is no evidence that the Issuer acted with intent in the commission of the infractions; however, a lack of diligence duty is evidenced;
35. That, consequently, in the present PAS the Issuer has no sanction history or recidivism, additionally it is not observed that it has incurred the aggravating factors referred to the accreditation of a quantifiable damage, a grave repercussion on the market, the obtaining of an illegal benefit or intent in the commission of the infraction; however, the protected legal good of the transparency of the securities market continues to be affected because the Issuer has not presented to the SMV the individual audited annual financial statements and its corresponding audit report for the 2023 exercise, as well as the annual report for the 2023 exercise to date;
36. That, in the present PAS, it is noted that from the evaluation of the Sanction Criteria previously developed, and since the Issuer has not presented the information subject to charges, it corresponds to sanction the Issuer with a fine amounting to 25 UIT 18 equivalent to S/ 128,750.00 (One Hundred Twenty-Eight Thousand Seven Hundred Fifty and 00/100 Soles) for each serious nature infraction committed, for the non-presentation of the individual audited annual financial statements and its corresponding audit report for the 2023 exercise, as well as the annual report for the 2023 exercise, with the following detail:
(i) Sanction MICHELL Y CIA. S.A. with a fine of 25 UIT equivalent to S/ 128,750.00 (One Hundred Twenty-Eight Thousand Seven Hundred Fifty and 00/100 Soles), for not presenting the individual audited annual financial statements and its corresponding audit report for the 2023 exercise.

17 Link to the Institutional Page of the SMV in the Digital Platform of the Peruvian State for Citizen Orientation: https://www.gob.pe/smv 18 Value of the UIT (2024): S/ 5,150 (Supreme Decree No. 309-2023-EF)

(ii) Sanction MICHELL Y CIA. S.A. with a fine of 25 UIT equivalent to S/ 128,750.00 (One Hundred Twenty-Eight Thousand Seven Hundred Fifty and 00/100 Soles), for not presenting the annual report corresponding to the 2023 exercise.

VI. Application of Corrective Measures
37. That, in accordance with Article 1 of both the LOSMV and the TUO LMV, it is the purpose and duty of the SMV “to ensure the adequate protection of investors”. Thus, Article 1 of the LOSMV provides:
“Article 1. Definition, purpose and functions of the Securities Market Superintendence (SMV) The Securities Market Superintendence (SMV) is a specialized technical body attached to the Ministry of Economy and Finance whose purpose is to ensure the protection of investors, the efficiency and transparency of the markets under its supervision, the correct formation of prices and the dissemination of all information necessary for such purposes, through regulation, supervision and promotion. It has legal personality of internal public law and enjoys functional, administrative, economic, technical and budgetary autonomy, constituting a budgetary item. Its functioning is governed by the provisions contained in this Law and its organization and functions regulation. The functions of the Securities Market Superintendence (SMV) are the following: (…)” (Underlining and emphasis added).
38. That, in Article 1 of the TUO LMV it is established as follows:
“Article 1.- Purpose and Scope of the Law.- The purpose of this law is to promote the orderly development and transparency of the securities market, as well as the adequate protection of the investor.
Public offerings of securities and their issuers, public offering securities, intermediation agents, stock exchanges, clearing and settlement institutions, securitization companies, mutual investment funds in securities, investment funds, and in general, the other participants in the securities market, as well as the supervision and control body, are included in this law. Unless expressly stated otherwise, its provisions do not extend to private offerings of securities. (…)”
39. That, regarding the function and responsibility of the SMV, it is necessary to take into account that Article 7 of the TUO LMV provides:
“Article 7.- Control and Supervision.
The Securities Market Superintendence (SMV) is the public institution responsible for the supervision and control of compliance with this law. (…)” (Underlining and emphasis added);
40. That, regarding the SMV's faculty to issue corrective measures, what is provided in Article 352 of the TUO LMV is considered:
“Article 352.- Precautionary, provisional and corrective measures

The SMV is empowered to issue precautionary, provisional and corrective measures regarding natural or legal persons under its competence, regardless of whether a sanctioning procedure has been initiated or not. (…)” (Underlining and emphasis added);
41. That, regarding the definition or scope of corrective measures, what is established in Article 19 of the Sanctions Regulation is considered:
“Article 19.- DEFINITION.- Corrective measures are those mandates oriented to restore, reverse, repair, or restate that situation altered by the non-compliance of the regulations under the supervision of the SMV. These measures can be issued prior to the start of an administrative sanctioning procedure or at the moment of the determination of administrative responsibility. Corrective measures may consist of obligations to give, do, and not do, and must establish in a precise and indubitable manner the task assigned to the regulated party, identifying those obliged to comply with them. Corrective measures must be issued through a duly motivated decision and observing the principles of Proportionality and Reasonableness.” (Underlining and emphasis added);
42. That, regarding the issuance of corrective measures by the Adjunct Superintendents of the SMV, what is established in Article 21 of the Sanctions Regulation is considered:
“Article 21.- CORRECTIVE MEASURES ISSUED BY THE ADJUNCT SUPERINTENDENTS.- The corrective measures established at the moment of the determination of administrative responsibility are issued by the corresponding Adjunct Superintendents.
In Annex XX of the Regulation, the corrective measures that can be issued are mentioned in an enumerative manner. The Adjunct Superintendents may issue corrective measures, even for very serious infractions.” (Underlining and emphasis added);
43. That, likewise, regarding corrective measures, it is necessary to refer to what is provided in Article 251 of the TUO of the LPAG:
“Article 251. -Determination of responsibility
251.1 The administrative sanctions imposed on the regulated party are compatible with the issuance of corrective measures conducive to ordering the restoration or repair of the situation altered by the infraction to its previous state, including that of the affected goods, as well as with the indemnification for damages and losses caused, which are determined in the corresponding judicial process. Corrective measures must be previously typified, be reasonable and adjust to the intensity, proportionality and needs of the legal goods protected that are intended to be guaranteed in each concrete case. (…)”
(Underlining and emphasis added);

That, regarding the typification of the corrective measure to be applied, Annex XX of the Sanctions Regulation establishes the following:
“[…] ANNEX XX
On Corrective Measures
In accordance with what is established in Article 21 of the Regulation, the SMV, when determining administrative responsibility, may issue the following corrective measures:
[…]
25) The delivery of documentation, records or other information that the regulations require from entities under the competence of the SMV. […]”
(Underlining and emphasis added);
45. That, as for the competence or faculty of the SASCM to issue corrective measures, numeral 12 of Article 43 of the ROF-SMV establishes:
“ARTICLE 43°.- Specific functions of the Adjunct Superintendence of Market Conduct Supervision:
(…)
12. Issue, modify or revoke, precautionary, corrective and/or provisional measures, ex officio or at the request of a party, in cases submitted to its knowledge; (…)”. (Underlining and emphasis added);
46. That, in concordance with the previous article, it is also considered regarding the competence or faculty of the SASCM to issue corrective measures, numeral 13 of Article 43 of the ROF-SMV establishes the following:
“ARTICLE 43°.- Specific functions of the Adjunct Superintendence of Market Conduct Supervision:
(…)
13. Within the scope of its competence, impose sanctions in the first administrative instance for the commission of infractions whose compliance control corresponds to the Adjunct Superintendence of Market Conduct Supervision, with the exception of infractions to the norms on the timeliness of the presentation of periodic or eventual information. The respective sanction resolution may dispose the application of corrective measures tending to reverse the situation altered by the commission of the infraction; (…)” (Underlining and emphasis
added);
47. That, on the basis of what is exposed in this Resolution and in observance of the principles of proportionality and reasonableness, it must comply with the purpose of the SMV and the LMV to ensure the efficiency and transparency of the markets under its supervision, the correct formation of prices and the dissemination of all information necessary for such purposes; that is, a corrective measure must be issued to the Issuer to comply with presenting the individual audited annual financial statements and its corresponding audit report for the 2023 exercise, as well as the annual report for the 2023 exercise within a period not greater than thirty (30) business days of notification ;
48. That, the IGSC, being the body of the SMV whose function is to supervise the presentation of financial information and other information that issuers must disseminate in the securities market, in accordance with what is indicated in Article 45 and numerals 17 and 43 of Article 46 of the ROF-SMV, is the one who must verify the compliance with what was ordered to the Issuer;
49. That, the public interest, in general, should not continue to be affected by the lack of information transparency, and the principle of opportunity and the principle of primacy of reality must be considered in addition. In this line, it is necessary to reiterate that the transparency of the securities market is a supra-individual legal good or of diffuse interest, since it safeguards the interests of investors and potential investors; that is, it is of a sectoral nature, as is the case of the securities market, where investors and potential investors, individually or collectively, may be affected when the norms of presentation of the information that must be revealed to the market in favor of investors are transgressed, so that they can make investment decisions duly informed about the issuer and its values that are negotiated in centralized negotiation mechanisms;

Being in accordance with what is disposed in numerals 12, 13, 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 MICHELL Y CIA has incurred two (2) serious infractions typified in inciso 2.10 of numeral 2 of Annex I of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01, for (i) not presenting the individual audited annual financial statements and its corresponding audit report for the 2023 exercise, as well as (ii) the annual report for the 2023 exercise.
Article 2º.- Sanction MICHELL Y CIA. S.A. with a fine of 25 UIT equivalent to S/ 128,750.00 (One Hundred Twenty-Eight Thousand Seven Hundred Fifty and 00/100 Soles), for not presenting the individual audited annual financial statements and its corresponding audit report for the 2023 exercise, for what is provided in Article 1° of this Resolution.
Article 3º.- Sanction MICHELL Y CIA. S.A. with a fine of 25 UIT equivalent to S/ 128,750.00 (One Hundred Twenty-Eight Thousand Seven Hundred Fifty and 00/100 Soles), for not presenting the annual report corresponding to the 2023 exercise, for what is provided in Article 1° of this Resolution.
Article 4º.- Issue as a corrective measure that MICHELL Y CIA. S.A., in accordance with Article 21 and numeral 25 of Annex XX “On Corrective Measures” of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01, complies with the obligation to present the individual audited annual financial statements and its corresponding audit report for the 2023 exercise; as well as the annual report for the 2023 exercise subject to charges, within

the period of thirty (30) business days counted from the day following the notification of this Resolution.
Article 5º.- Dispose that the General Superintendence of Market Conduct Supervision of the Securities Market Superintendence – SMV verify the compliance with what is disposed in Article 4° of this Resolution, in accordance with what is indicated in the considerations thereof, and that in accordance with the exercise of its competencies and keeping in mind the applicable regulatory framework, inform the competent body of the Securities Market Superintendence – SMV, regarding the compliance with the corrective measure issued.
Article 6º.- This Resolution does not exhaust the administrative route, this being able to be challenged before this Adjunct Superintendence of Market Conduct Supervision by filing the reconsideration or appeal resource, administrative resource recognized in Article 218 of the Single Consolidated Text of Law No. 27444, Law of the General Administrative Procedure, approved by Supreme Decree No. 004-2019-JUS, within the period of fifteen (15) business days counted from the day following its notification, since it is a procedure of double administrative instance. In case this Resolution is not challenged, the regime of reduction of the corresponding sanction may be applied.
Article 7º.- In case this Resolution is not subject to challenge, it must be published on the “Institutional Page of the SMV in the 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 dissemination of normative projects, general character legal norms, 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 Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01.
Article 8º.- Transcribe this Resolution to MICHELL Y CIA. S.A.
Register, communicate and publish.
Carlos Enrique Meneses Camargo
Adjunct Superintendent (e)
Adjunct Superintendence of Market Conduct Supervision

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