Adjunct Superintendent Resolution on Prudential Supervision No. 050-2025-SMV/10 — SMV — PE

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 authorship.

Adjunct Superintendent Resolution SMV
No. 050-2025-SMV/10
Lima, October 1, 2025

Subject: Fonbienes Perú EAFC S.A. is sanctioned with a reprimand for having committed one (01) serious infringement typified in Annex I, numeral 2, subsection 2.25 of the Sanctions Regulation, for failing to comply with conduct norms.

Administered Entity: Fonbienes Perú EAFC S.A.
Subject: Administrative sanctioning procedure
File No.: 2025029172

The Adjunct Superintendent of Prudential Supervision

HAVING SEEN:

The administrative file No. 2025029172, Report No. 1210-2025-SMV/10, issued by the General Superintendent of Prudential Compliance, as well as the defenses and arguments presented by Fonbienes Perú EAFC S.A.; and

CONSIDERING:

Pursuant to Article 1 of Law No. 29782, Law for the Strengthening of the Supervision of the Securities Market, the name of the National Commission for the Supervision of Companies and Securities (CONASEV) is replaced by that of the Securities Market Superintendence (SMV); therefore, any reference to CONASEV in legal norms shall be understood as a reference to the SMV;

I. FACTS

On July 13, 2021, Fonbienes Perú EAFC S.A. (hereinafter, FONBIENES EAFC) communicated the results of the assembly held on July 8, 2021 (hereinafter, JULY ASSEMBLY) of Group 27 (hereinafter, GROUP), under the Program named “FBP006” under the System of Purchase Certificates with Predetermined Supplier (hereinafter, FBP006 PROGRAM)1. Through said communication, it was observed that the amount of the final balance of the JULY ASSEMBLY amounted to USD 1,320.89;
On August 13, 2021, FONBIENES EAFC communicated the results of the assembly held on August 10, 2021 (hereinafter, AUGUST ASSEMBLY) of the GROUP, FBP006 PROGRAM2. Through said communication, it was observed that the amount of the initial balance of said assembly amounted to USD 823.58, an amount that differs from the final balance of the JULY ASSEMBLY, which amounted to USD 1,320.89, as can be seen in the following Tables: No. 1 and No. 2:

Table No. 1: Results of the assembly of July 8, 2021
(JULY ASSEMBLY)
Result of Income and Expenses of Group 27
Initial Balance $ 1,549.11
Income
Extraordinary income $ 14,000.00
Contributions as of 06/07/2021 $ 37,621.26
Auctions $ 56,150.52
Expenses
Return of contributions $ -
Award by lottery $ 11,000.00
Award by auction $ 97,000.00
Final Balance $ 1,320.89

Table No. 2: Results of the assembly of August 10, 2021
(AUGUST ASSEMBLY)
Result of Income and Expenses of Group 27
Initial Balance $ 823.58
Income
Extraordinary income $ 7,422.54
Contributions as of 06/08/2021 $ 30,129.85
Auctions $ 19,237.51
Expenses
Return of contributions $ -
Award by lottery $ 11,000.00
Award by auction $ 42,000.00
Final Balance $ 4,613.48

With the objective of obtaining a response regarding the difference between the final balance of the JULY ASSEMBLY and the initial balance of the AUGUST ASSEMBLY, through an email dated September 8, 2021, the General Superintendent of Entity Supervision (hereinafter, IGSE) communicated these observations to FONBIENES EAFC;
In response to said email, on September 11, 2021, FONBIENES EAFC stated that the amount of the final balance of the JULY ASSEMBLY (and therefore the amount of the initial balance of the AUGUST ASSEMBLY) amounted to USD 8,245.98. Furthermore, the administering company indicated that this was due to the fact that in the JULY ASSEMBLY, the PRIMARY MEMBER OF THE JULY ASSEMBLY3 (with contracts No. 82387, No. 81284 and No. 82384) did not make payment for their auction bids, for which reason, FONBIENES EAFC states, they notified the SUBSTITUTE MEMBER OF THE JULY ASSEMBLY (with contract No. 82520), who made effective payment for their auction bid;
In this sense, through Official Letter No. 4591-2021-SMV/10.2 dated November 22, 2021 (hereinafter, OFFICIAL LETTER), it was indicated to FONBIENES EAFC that in the AUGUST ASSEMBLY, the initial balance considered would have been the amount of USD 823.58, when in reality the correct amount of said balance should have been USD 8,245.98; and that this would have had as a consequence that FONBIENES EAFC considered a lower amount as the available amount in the collective fund at the start of the AUGUST ASSEMBLY, which would have caused the SUBSTITUTE MEMBER OF THE AUGUST ASSEMBLY not to be awarded under the auction modality in said assembly, remaining as a substitute member;
Thus, the available balance for the AUGUST ASSEMBLY, considering the respective income and expenses, should have amounted to USD 12,035.88, which constituted resources of the collective fund sufficient to award the SUBSTITUTE MEMBER OF THE AUGUST ASSEMBLY, who demanded the amount of USD 10,746.18 to be awarded under the auction modality. This according to the detail of the following table:

Table No. 3: Corrected version of AUGUST ASSEMBLY
Result of Income and Expenses of Group 027
Initial Balance $ 8,245.98
Income
Extraordinary income $ 7,422.54
Contributions as of 06/08/2021 $ 30,129.85
Auctions $ 19,237.51
Expenses
Return of contributions $ -
Award by lottery $ 11,000.00
Award by auction $ 42,000.00
Net Expense for Award of the
SUBSTITUTE MEMBER OF THE AUGUST
ASSEMBLY
$ 10,746.18
Final Balance $ 1,289.70

In response to the OFFICIAL LETTER, through a letter dated November 29, 2021, FONBIENES EAFC indicated, among other things, that i) due to an involuntary technical error, the SUBSTITUTE MEMBER OF THE AUGUST ASSEMBLY was not awarded; and ii) that said member would be awarded in the assembly of December 2021. Subsequently, through a written submission dated December 13, 2021, FONBIENES EAFC communicated the results of the assembly of December 7, 2021 of the GROUP, in which it can be seen that the SUBSTITUTE MEMBER OF THE AUGUST ASSEMBLY was not awarded;
Through letters dated March 10 and April 11, 2022, FONBIENES EAFC informed that it offered the SUBSTITUTE MEMBER OF THE AUGUST ASSEMBLY the possibility of being awarded under the auction modality, but that this person did not make payment for their auction bid. Likewise, it informed that on January 8, 2022, the SUBSTITUTE MEMBER OF THE AUGUST ASSEMBLY sent a letter manifesting their decision to resign from the FBP006 PROGRAM;
In this way, on March 3, 2022, FONBIENES EAFC and the SUBSTITUTE MEMBER OF THE AUGUST ASSEMBLY agreed to terminate the contractual relationship with the payment of USD 1,113.04 for the damages caused, according to the refund agreement signed by the SUBSTITUTE MEMBER OF THE AUGUST ASSEMBLY and presented by FONBIENES EAFC;
Through communication dated May 19, 2022, FONBIENES EAFC sent to the SMV the letter addressed to the SUBSTITUTE MEMBER OF THE AUGUST ASSEMBLY, through which the administering company informs that the deposit of the sum of USD 1,113.04 in their favor was made. Likewise, it attaches the proof of the interbank transfer;
Through Report No. 959-2022-SMV/10.2, the IGSE communicated to the General Superintendent of Prudential Compliance, the findings of indications of possible infringements of the Regulation of the Collective Funds System and its Administering Companies, approved by SMV Resolution No. 020-2014-SMV/01 and its amendments (hereinafter, REGULATION) by FONBIENES EAFC;
With Official Letter No. 3771-2025-SMV/10.3, notified on July 11, 2025 (hereinafter, CHARGES OFFICIAL LETTER), an administrative sanctioning procedure was initiated against FONBIENES EAFC, having verified that it infringed its conduct norms;
On July 25, 2025, FONBIENES EAFC presented its defense written submission regarding the observations made through the CHARGES OFFICIAL LETTER;
The charges formulated, as well as the defenses presented by FONBIENES EAFC, have been the subject of evaluation in Report No. 1210-2025-SMV/10.3, which has been submitted to the knowledge of this Adjunct Superintendence;
In observance of the Principle of Due Process contemplated both in Article IV, subsection 1, numeral 1.2, of the Preliminary Title, as well as in Article 248°, numeral 2, of Law No. 27444 – General Administrative Procedure Law and modified by Legislative Decree No. 1272, through Official Letter No. 4662-2025-SMV/10, the administrative file to which this resolution refers was made available to FONBIENES EAFC for review;
On September 9, 2025, the administrator presented additional written arguments;

II. ISSUES TO BE DETERMINED

In the present administrative procedure, in the opinion of this Adjunct Superintendence of Prudential Supervision, it corresponds to determine the following:
a. Whether FONBIENES EAFC incurred or did not incur an infringement for not acting with the due care and diligence in the incorrect recording of its amounts regarding two assemblies, which generated that the total amount of the fund was not maximized, and that a substitute member was not awarded, transgressing the conduct norms established in Article 48°, letter e) of the REGULATION; b. Whether it corresponds or does not correspond to sanction FONBIENES EAFC for what is stated in the preceding letters;

III. ANALYSIS

OF THE APPLICABLE NORMS

Article 108 of the REGULATION establishes the following:

“Article 108.- Awards
The award is the mechanism through which the Member accesses the right to obtain a good and/or service or a purchase certificate that will be used for the acquisition of a good and/or service.
(...)
In each Assembly, priority must be given, at minimum, to the award to one Member by lottery except in the case provided for in Article 23. The total number of awards of each Assembly must maximize the use of the available amount in the Collective Fund.
(...)” (Underlining added).

In that context, it must be noted that Article 48, letter e) of the REGULATION provides the following:

“Article 48.- Conduct Norms
In the development of their activities, the Administrator, its directors, managers, officials, employees and salespeople, must comply with the following general conduct norms:
(...) e) Honesty, Care and Diligence.- Perform their activities with honesty, as well as with the due care and diligence in the best interest of the Collective Fund and its Members, avoiding acts that may deteriorate their confidence.
(...)” (Underlining added).

OF THE CHARGE FORMULATED

From the facts exposed, it is established that FONBIENES EAFC incorrectly recorded the amount of USD 1,320.89 as the final balance of the JULY ASSEMBLY, given that, in the calculation performed, the administering company would have considered the auction bids of one of the awarded primary members of said assembly, who according to what was stated by FONBIENES EAFC, did not make payment for said auction bids. Likewise, in the calculation performed, it would not have considered the payment of the auction bid made by the first substitute member of said assembly;
Likewise, FONBIENES EAFC incorrectly recorded the amount of USD 823.58 as the initial balance of the AUGUST ASSEMBLY, which constituted a balance different from the final balance reported for the JULY ASSEMBLY;
In that sense, upon re-calculating the final balance of the JULY ASSEMBLY, considering in the calculation the payment of the auction bids of the first substitute member and not computing the auction bids of the awarded primary member, since they did not make payment for their auction bids, the correct amount amounted to USD 8,245.98;
Consequently, taking into account that the initial balance of the AUGUST ASSEMBLY was actually USD 8,245.98, it must be considered that, as can be observed in Table No. 3 of this resolution, after computing the income (mainly contributions from members) and expenses (mainly awards by lottery and auction), a available balance of USD 12,035.88 should have remained in the collective fund; with which, FONBIENES EAFC could have additionally made the award of the SUBSTITUTE MEMBER OF THE AUGUST ASSEMBLY, who in their condition as the first substitute member, demanded the amount of USD 10,746.18 to be awarded under the auction modality;
In view of the foregoing, the incorrect calculation of the final balance of the JULY ASSEMBLY (and therefore the amount of the initial balance of the AUGUST ASSEMBLY) performed by FONBIENES EAFC, would have prevented the SUBSTITUTE MEMBER OF THE AUGUST ASSEMBLY from obtaining the respective award, given that the incorrect calculation did not allow observing that the collective fund had sufficient resources for said award. In that sense, this would evidence that FONBIENES EAFC did not have the due care and diligence in performing the correct calculations in the systems it uses for awards in assemblies, an operation that must have the corresponding internal controls and IT supports in order not to affect the members nor the collective fund;
In that sense, FONBIENES EAFC would not have performed its activities with the due care and diligence in the best interest of the collective fund and its members, potentially -potentially- deteriorating confidence in the collective funds system;
Therefore, it is imputed to FONBIENES EAFC that it would have committed a serious infringement, in accordance with what is established in Annex I, numeral 2, subsection 2.25 of the Sanctions Regulation, approved by SMV Resolution No. 35-2018-SMV/01 (hereinafter, SANCTIONS REGULATION), according to which it constitutes an infringement: “Not to have, approve, implement, nor comply with or modify them without communicating them to the SMV, within the corresponding deadline, the conduct norms, the internal conduct norms, or code of conduct, according to the regulations on the matter, or not to approve a control procedure for said norms”;

OF THE DEFENSES

FONBIENES EAFC recognizes that, due to an involuntary technical omission in the accounting treatment of the available balance, the SUBSTITUTE MEMBER OF THE AUGUST ASSEMBLY was not awarded. Regarding this, FONBIENES EAFC indicates that this fact did not obey to a dishonest, negligent or intentionally omitting conduct, but was the product of an operational mismatch that was identified, corrected and compensated in a timely manner;
Regarding this, FONBIENES EAFC alleges that it acted immediately and adopted the following corrective measures: (i) contacted the SUBSTITUTE MEMBER OF THE AUGUST ASSEMBLY and explained what happened, recognizing the situation, and (ii) offered to award said member in the December 2021 assembly, even if this implied assuming a negative balance for the administering company. However, FONBIENES EAFC mentions that the SUBSTITUTE MEMBER OF THE AUGUST ASSEMBLY communicated in writing their formal resignation from the program and accepted a compensation of USD 1,113.04, which was paid -to said member- via bank transfer on March 21, 2022. FONBIENES EAFC adds that said banking operation was executed within the framework of a mutual agreement, with the knowledge of the member and without any conditioning. Likewise, in its arguments it states that there was no undue benefit, nor advantage on the part of the company and that on the contrary it avoided the prolongation of any impact and restored the situation with the greatest possible speed;
Additionally, FONBIENES EAFC mentions that said reparatory action was communicated to the SMV on November 29, 20214, and that said communication was accompanied by the corresponding documentary proofs;
Regarding this, FONBIENES EAFC alleges that it assumed responsibility for the fact, and that it deployed all the corrective and reparatory actions required, in accordance with the principles governing the administrative sanctioning procedure;
On the other hand, FONBIENES EAFC mentions that it adopted various preventive measures to avoid the repetition of similar facts, among which are the following: (i) modification of procedures for generating balance reports, (ii) incorporation of operational control signatures in balance reports, (iii) comprehensive update of the operational procedures manual, and, (iv) training of its operational staff involved in the award process. Likewise, FONBIENES EAFC indicates that this information was sent to the SMV previously, and that this would evidence that said administering company acted assuming a commitment in favor of the collective funds system;
Likewise, the administering company presents arguments regarding the exclusion of administrative responsibility, alleging in the first place, that the imputed fact does not respond to a dishonest conduct, nor to a negligent or imprudent serious action, but rather, to a specific, isolated and exceptional situation, generated by an operational mismatch, and that the omission was not the product of bad faith or of a conscious non-compliance with the norms, but of an imprecision that would have been detected and corrected. Regarding this, FONBIENES EAFC refers to the principle of culpability, through which, -according to the administrator- a sanction cannot be imposed when no intentionality or relevant affectation to the legal good protected by the norm is accredited;
As a second point related to the exclusion of administrative responsibility, FONBIENES EAFC alleges that it had a collaborative attitude, since the observations raised would have been attended to by delivering detailed information about what happened. Likewise, FONBIENES EAFC mentions that it executed a voluntary repair, through the payment of an economic compensation without the member having made any claim;

4 File No. 2021031460, as a response to what was required through Official Letter No. 4591-2021-SMV/10.2.

PERU 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
35. Furthermore, as a third point, FONBIENES EAFC mentions that the incident that occurred did not impact the integrity of the collective fund, nor distorted the results of the group, and in its additional written allegations, it indicates that there was no deterioration in the confidence of the associates, nor structural damage to the system. It mentions that since there were no other prejudiced award winners, nor was the operational schedule altered, nor were funds used improperly, there would have been no substantive or patrimonial damage justifying a sanctioning measure. In this sense, the administrator requests that this be considered as a mitigating factor, also noting that to date there has been no recurrence of similar facts;
36. On the other hand, as a fourth point, the administrator refers that it adopted preventive measures in its allocation systems. According to FONBIENES EAFC, these improvements reflect a diligent conduct aimed at correcting and guaranteeing that similar facts do not recur in the future; therefore, FONBIENES EAFC considers that this would demonstrate compliance with the principle of diligence provided for in Article 48 of the REGULATION;
37. For its part, as the last point referred to the exclusion of administrative liability, FONBIENES EAFC refers that, based on the principle of reasonableness, it would be appropriate to apply criteria for the exclusion of liability, or opt for a corrective or non-pecuniary measure, based on the arguments related to active collaboration, voluntary repair, improvement of controls, etc., mentioned above;
38. Regarding the point referred to the application of the criteria of reasonableness and proportionality, FONBIENES EAFC mentions that, subsidiarily, if the commission of an infringement is considered, the principle of reasonableness and proportionality should be applied, which –according to the administrator– empowers the authority to impose mitigated sanctions or exempt from fines. Regarding this, FONBIENES EAFC mentions elements that would configure such imposition: (i) there would have been no patrimonial damage to the fund or associates, (ii) there would have been a voluntary repair, (iii) a diligent conduct of FONBIENES EAFC would have been accredited, during the detection of the fact and in a subsequent stage, (iv) there would be no recidivism or pattern of non-compliance that evidences a reiterative attitude of the infringement;
39. Additionally, in its additional written allegations, it requests that it be considered that the regulatory objective (to dissuade and prevent operational failures) is already satisfied with the corrective measures implemented (double validation, checklists, update of manuals and training), as well as the effective repair to the associate. Regarding the proportionality of the sanction, the administrator indicates that the least burdensome option that is equally effective should be preferred, to the extent that: (a) there was no repetition, (b) there was no undue benefit, (c) the associate was compensated. Likewise, it requests that it be considered that this is a specific operational discrepancy, without systemic damage to the fund or impact on the capacity to allocate, already repaired and not recurrent;

EVALUATION OF THE DEFENSES
40. In its defense statement, FONBIENES EAFC recognizes that as a result of a technical omission in accounting treatment, it did not allocate the SUBSTITUTE ASSOCIATE OF THE AUGUST ASSEMBLY;
41. Regarding this, FONBIENES EAFC indicated that this fact was not the product of a willful, negligent, imprudent, or intentional conduct, and that

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 it was also not the result of acting in bad faith, or of a conscious non-compliance with the rules; but rather, the administrator considers it to be a specific and exceptional situation. Regarding this, FONBIENES EAFC bases its argument by stating that, in accordance with the principle of culpability, a sanction cannot be imposed when intent or a relevant impact on the protected legal interest is not accredited;
42. Regarding the principle of culpability cited by FONBIENES EAFC, it must be indicated that this principle is included in Article 248, numeral 10, of the Single Text of the General Administrative Procedure Law No. 27444 (hereinafter, TUO LPAG), and expressly establishes that administrative liability is subjective, except in cases where by law or legislative decree objective administrative liability is established;
43. In the present case, although no evidence has been found that determines that FONBIENES EAFC acted with the intention of violating the established rules of conduct on care and diligence –by incorrectly establishing the amounts of the final and initial balances of the JULY ASSEMBLY and the AUGUST ASSEMBLY, respectively–; however, its conduct involves the commission of an infringement due to fault; that is, by the production of an unlawful result, duly typified, completely foreseeable and avoidable, since it disregarded a duty of care and diligence in its conduct regarding the rules of conduct that were exigible to it by the regulations of the collective fund system, and that FONBIENES EAFC had to take into account, in its capacity as a collective fund administrator company;
44. Therefore, it is evident that, in the communication of results of the JULY ASSEMBLY and the AUGUST ASSEMBLY, FONBIENES EAFC recorded incorrect amounts for the balances (final and initial, respectively) of these assemblies, in contravention of the rules of conduct on care and diligence, established in the REGULATION;
45. For its part, in its additional written allegations, FONBIENES EAFC states that the facts attributed to the collective fund administrator would violate the principle of legality (typicity), insofar as there would be no relationship between the imputed fact and the infringing norm sought to be applied, to the extent that the facts subject to charges were imputed under the infringing type of Annex I, numeral 2, clause 2.25 of the SANCTIONS REGULATION, which is designed for organizational failures or systematic non-compliance, while in this case it is an isolated execution incident that was mitigated through corrective and preventive measures;
46. Regarding this, it must be specified that in accordance with what is stated in the CHARGES OFFICE, the imputed charge refers to the non-compliance with what is provided in Article 48, letter e) of the REGULATION, so this conduct is subsumed under the infringement typified in Annex I, numeral 2, clause 2.25 of the SANCTIONS REGULATION, indicated in the CHARGES OFFICE, that is “Not to have, approve, implement, nor comply with or modify them without communicating it to the SMV, within the corresponding deadline, the rules of conduct, the internal rules of conduct, or code of conduct, in accordance with the regulations on the matter, or not to approve a control procedure for said rules”. (Underline added). Therefore, the imputed charge does not violate the principle of legality argued by the administrator company. It should be noted that the referred regulation does not distinguish whether the lack of care or diligence was systematic or specific; and it impacts acts that could deteriorate confidence in the collective fund system,

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
47. Now, regarding the inability to impose a sanction when no relevant impact on the legal good protected by the norm is accredited, it must be indicated that the affected legal good –in the present case– refers to the integrity and protection of the participants in the collective fund system;
48. Regarding this, it must be indicated that this legal good suffered an impact from FONBIENES EAFC, since, as mentioned above, due to an incorrect recording of the amounts in the balances of two assemblies, FONBIENES EAFC did not perform the allocation required by the SUBSTITUTE ASSOCIATE OF THE AUGUST ASSEMBLY, generating a detriment in its condition as an associate of the GROUP;
49. It is important to mention that a fact like the one imputed in the present case affects the integrity of the system, as well as the protection of its participants, since it is essential that associates and the general public can trust that the funds will be administered in accordance with the law and the principles of good faith and diligence;
50. On the other hand, FONBIENES EAFC alleges that the technical incident has not generated an impact on the integrity of the collective fund, nor distorted the results of the group. However, from the documents provided by FONBIENES EAFC, as well as from the allegations manifested in its defense statement, it is clear that the administrator company itself has recognized that due to a technical error, it did not allocate to the SUBSTITUTE ASSOCIATE OF THE AUGUST ASSEMBLY, when said associate had demanded the amount of USD 10,746.18 to be allocated under the auction modality;
51. In this sense, a clear distortion in the results of the allocations in the AUGUST ASSEMBLY is appreciated, to the detriment of the aforementioned associate, due to the fact that the GROUP had fewer funds to perform the allocation than the SUBSTITUTE ASSOCIATE OF THE AUGUST ASSEMBLY required. Likewise, an evident impact on the integrity of the collective fund administered by FONBIENES EAFC is appreciated, since the fact of not allocating to an associate when the fund had sufficient balance to do so implies an incorrect disposition of the amounts to be used within the framework of the allocation system, especially since Article 108 of the REGULATION establishes the obligation to maximize the available amount in the fund to perform said allocations;
52. Likewise, regarding the fact that there has been no substantive or patrimonial damage that justifies a sanctioning measure, it must be indicated that, as mentioned above, the lack of care and diligence in the conduct of FONBIENES EAFC implied an impact on the interests of the SUBSTITUTE ASSOCIATE OF THE AUGUST ASSEMBLY, since it should have been allocated in the AUGUST ASSEMBLY. This demonstrates that the non-allocation to said associate harmed him patrimonially, as he could not acquire the purchase certificate in such assembly and, therefore, acquire the respective vehicle;
53. On the other hand, regarding the measures implemented by FONBIENES EAFC, and that –according to the administrator company– these measures would have produced a voluntary and sufficient repair of the possible damage generated, it must be mentioned that these measures have been directed exclusively to mitigate the lack of allocation of the SUBSTITUTE ASSOCIATE OF THE AUGUST ASSEMBLY, providing him with information about what happened and offering him a subsequent allocation; however, the reparatory measures have not remedied or restored the situation affected

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 by the infringement committed, that is, the incorrect recording of amounts regarding the balances of the JULY ASSEMBLY and the AUGUST ASSEMBLY, as explained in the charges imputation;
54. Likewise, regarding the voluntary implementation of the reparatory measures, it is necessary to mention that these arose as a consequence of an information request made by the SMV, who, as previously indicated, sent an email to FONBIENES EAFC dated September 8, 2021, through which it requested information about the difference in the final balance of the JULY ASSEMBLY in relation to the initial balance of the AUGUST ASSEMBLY. In this sense, it is not correct to affirm that these measures were implemented voluntarily;
55. It is appropriate to add that the remediation of an infringement implies the performance of an action conducive to repairing the situation altered by the infringement to its previous state. In other words, not any action can be considered as a voluntary remediation, since this must lead to the restoration of the situation to its state prior to the commission of the infringement;
56. In this sense, the communication via email on November 29, 2021 that FONBIENES EAFC directed to the SUBSTITUTE ASSOCIATE OF THE AUGUST ASSEMBLY, as well as the mutual agreement negotiated with said associate, does not retroact the incorrect recording of amounts regarding the balances of the JULY ASSEMBLY and the AUGUST ASSEMBLY, nor generates the immediate restoration of the situation to its state prior to said recording;
57. Therefore, the communication of November 29, 2021 cannot be considered as a written document or an action tending to remediate the violation of the rules of conduct of FONBIENES EAFC; therefore, it cannot be considered as an exemption of liability within the parameters established in Article 257, numeral 1, letter f) of the TUO LPAG, nor of Article 27 of the SANCTIONS REGULATION;
58. However, it must be mentioned that these reparatory measures implemented by FONBIENES EAFC after the commission of the infringement, such as the communication sent to the SUBSTITUTE ASSOCIATE OF THE AUGUST ASSEMBLY regarding his situation, as well as the payment of an economic compensation in favor of said associate (product of a mutual agreement), will be considered when determining the sanction to be imposed;
59. For the foregoing, it is proven that FONBIENES EAFC did not perform its business activities with the due care and diligence in the best interest of the collective fund and all its associates, promoting the normal and efficient functioning of the assemblies and the auction allocation process; therefore, its conduct meant a clear impact on the SUBSTITUTE ASSOCIATE OF THE AUGUST ASSEMBLY, by preventing his allocation;
60. On the other hand, FONBIENES EAFC mentions that it adopted various preventive measures in its allocation, control, and validation systems, through which the administrator company seeks to strengthen its internal processes, as well as correct and guarantee that similar facts –to those imputed– do not recur in the future. Regarding this, it should be indicated that what is stated by FONBIENES EAFC will be taken into consideration when performing the evaluation of the sanction to be imposed;
61. Likewise, regarding the principle of reasonableness cited by FONBIENES EAFC, as well as its claim regarding the application of the criteria for the exclusion of liability, it must be specified that this will be considered when performing the evaluation of the sanction to be imposed;
62. In view of the foregoing, FONBIENES EAFC has not disproven the imputed charge; therefore, it concludes that it has incurred in one (1) infringement classified as grave, typified in Annex I, numeral 2, clause 2.25 of the SANCTIONS REGULATION, according to which it constitutes an infringement: “Not to have, approve, implement, nor comply with or modify them without communicating it to the SMV, within the corresponding deadline, the rules of conduct, the internal rules of conduct, or code of conduct, in accordance with the regulations on the matter, or not to approve a control procedure for said rules”;

III. EVALUATION OF THE SANCTION
63. According to Article 7 of Decree Law No. 21907 on Collective Fund Companies, and Article 25 of the SANCTIONS REGULATION, in concordance with Article 248, numeral 3, of the TUO LPAG5, and the mitigating and exempting conditions of liability regulated in Articles 26 and 27 of the SANCTIONS REGULATION, in concordance with what is established in Article 257 of the TUO LPAG6
; the administrative sanctions that are imposed must take into account the criteria provided by Decree Law No. 21907, the SANCTIONS REGULATION, and the TUO LPAG
64. Within this framework, the evaluation of the sanction must consider: a) antecedents of the offender; b) recidivism; c) the circumstances of the commission of the infringement; d) the damage caused and the repercussion in the market; e) the illicit benefit resulting from the commission of the infringement; f) the probability of detection

5
“Article 248°.- Principles of the administrative sanctioning power (...)
3. Reasonableness.- The authorities must foresee that the commission of the sanctionable conduct does not result in more advantage for the offender than complying with the infringed rules or assuming the sanction. However, the sanctions to be applied must be proportional to the infringement qualified as such, observing the following criteria that are indicated for the purposes of their graduation:
a) The illicit benefit resulting from the commission of the infringement; b) The probability of detection of the infringement; c) The gravity of the damage to the public interest and/or protected legal good; d) The economic damage caused; e) Recidivism, for the commission of the same infringement within a period of one (1) year from when the resolution sanctioning the first infringement became final. f) The circumstances of the commission of the infringement; and g) The existence or not of intent in the conduct of the offender”. 6 “Article 257°.- Exemptions and mitigating conditions of liability for infractions 1.- The following constitute conditions exempting liability for infractions:
a) Force majeure or fortuitous event duly proven. b) Acting in compliance with a legal duty or the legitimate exercise of the right of defense. c) Mental incapacity duly proven by the competent authority, provided that this affects the aptitude to understand the infringement. d) Mandatory order of a competent authority, issued in the exercise of its functions. e) Error induced by the Administration or by confusing or illegal administrative provision. f) Voluntary remediation by the possible sanctioned party of the act or omission imputed as constitutive of an administrative infringement, prior to the notification of the charges referred to in clause 3) of Article 253. 2.- The following constitute mitigating conditions of liability for infractions:
a) If an administrative sanctioning procedure has been initiated and the offender recognizes his responsibility expressly and in writing.
In cases where the applicable sanction is a fine, it is reduced to an amount no less than half of its value. b) Others that are established by special regulation”.

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 of the infringement; g) the gravity of the damage to the public interest and/or protected legal good; h) the existence or not of intent in the conduct of the offender; and, g) the voluntary declaration of the commission of the infringement and the contribution of the offender to its clarification;
65. In this sense, in order to concord the criteria of the TUO LPAG, with those indicated in Decree Law No. 21907 and the SANCTIONS REGULATION, and for these criteria to be considered adequately with the aim that their valuation observes the principle of reasonableness and that the sanction to be imposed adapts to them, the following criteria are analyzed:
66. Regarding the gravity of the damage to the public interest and/or protected legal good, it has not been possible to prove that the conduct of FONBIENES EAFC, in the commission of the infringement analyzed in the present administrative sanctioning procedure, has caused damage to the public interest;
67. However, it is determined that the legal good referred to the integrity and protection of the participants in the collective fund system administered by FONBIENES EAFC has been affected, insofar as, by not having the due care and diligence in the correct recording of the amounts of the final and initial balances of the JULY ASSEMBLY and the AUGUST ASSEMBLY, respectively, the normal functioning of the allocation process was affected, which provides associates with legal security that all have the equal right to formulate auction proposals for quotas, with the best proposals winning, under the understanding that the allocation processes are meticulous and that the administrator company executes its procedures in a careful and diligent manner.
68. Likewise, it is appreciated that by not allocating to the SUBSTITUTE ASSOCIATE OF THE AUGUST ASSEMBLY (product of the incorrect recording of the amounts of the balances of the JULY ASSEMBLY and the AUGUST ASSEMBLY), the trust and security of the associate regarding the correct functioning of the collective fund system was affected, which could have influenced his resignation from the referred system, as appreciated in his resignation letter of December 15, 2021;
69. It must be indicated that the sanctions received by a collective fund administrator company are published and disseminated to the market, so that potential associates, associates, and the collective fund industry in general are informed about infractions, such as the present case, which affect a fundamental aspect of the system, namely, the allocation process. If the market in general is informed that said process is not adequately implemented by the administrators, this leads to a loss of confidence in the management of the collective funds, which impacts the development of the system;
70. Regarding the economic damage caused, it is worth mentioning that, FONBIENES EAFC –by not having the due care and diligence in the correct recording of amounts regarding the balances of the JULY ASSEMBLY and the AUGUST ASSEMBLY– has generated an impact on the SUBSTITUTE ASSOCIATE OF THE AUGUST ASSEMBLY, since, within the framework of the allocation process of the AUGUST ASSEMBLY, there was an incorrect initial balance, which resulted in the non-performance of the allocation that the SUBSTITUTE ASSOCIATE OF THE AUGUST ASSEMBLY sought;
71. Consequently, the SUBSTITUTE ASSOCIATE OF THE AUGUST ASSEMBLY with Contract No. 85539, could have been allocated by auction in said assembly, so he was affected by not having his certificate of

PERU Ministry of Economy and Finance

SMV
Securities Market Superintendency
Electronically signed document within the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and the authorship

Consequently, the economic damage caused to said associate must be measured taking into account that he did not receive, at that time, financing from the system to complete the amount of his certificate and acquire the vehicle in the AUGUST ASSEMBLY, but rather had to wait for FONBIENES EAFC to issue a communication informing him that he would be awarded in the December 2021 assembly, that is, four (4) months after the assembly in which he effectively had to be awarded (AUGUST ASSEMBLY);
Regarding this, FONBIENES EAFC mentions that the SUBSTITUTE ASSOCIATE OF THE AUGUST ASSEMBLY formally communicated his resignation from the program in writing and accepted compensation of USD 1,113.04. Likewise, it must be mentioned that in the present case FONBIENES EAFC has celebrated a return agreement with the SUBSTITUTE ASSOCIATE OF THE AUGUST ASSEMBLY, dated March 3, 2022; through which it is appreciated that the administrator company, on March 21, 2022, made the return of USD 1,113.04 to an interbank account of said associate, evidencing an agreement between both parties;
On the other hand, it has not been evidenced that there was repercussion in the market;
With respect to the antecedents of the offender, in accordance with what is provided by article 25 of the SANCTIONS REGULATION, the antecedents of the offender constitute the sanctions imposed by the SMV that have become final within the four (04) years prior to the date of the commission of the infraction;
In this sense, from the review carried out in said period, with respect to the charge subject to evaluation, it has been verified that FONBIENES EAFC presents the following antecedents:

7
Notified on August 11, 2017.
8
Notified on November 20, 2020.

Nº	Resolution	Resolved	Finality Date
i	Resolution of the Adjunct Superintendent SMV No. 067-2017-SMV/107	Fonbienes Perú Collective Fund Administrator Company S.A. is sanctioned with a fine of 05 UIT, for having incurred two (02) infractions of a light nature typified in Annex X, numeral 3, clause 3.10 of the Sanctions Regulation, approved by CONASEV Resolution No. 055-2001-EF/94.10 and its amendments (OLD SANCTIONS REGULATION) for not complying with what is provided by articles 72 and 74 of the Regulation of the Collective Fund System and its Collective Fund Administrator Companies, in force at the time of the commission of the facts, as well as the Technical Specifications Manual for the Submission to the SMV of Information of the Collective Fund Administrator Companies, for not timely submitting, according to the technical specifications, various information about the collective fund system.	04/09/2017
ii	Resolution of the Adjunct Superintendent SMV No. 049-2020-SMV/108	Fonbienes Perú EAFC S.A. is sanctioned with a fine of 7.44175 UIT for having incurred five (5) infractions of a light nature typified in Annex XIV, numeral 3, clause 3.1 of the SANCTIONS REGULATION and two (2) infractions of a light nature typified in Annex I, numeral 3, clause 3.1, of the SANCTIONS REGULATION, for not having complied with presenting periodic information within the deadline established by the applicable regulation referred to intermediate financial information and management report.	14/12/2020

PERU Ministry of Economy and Finance

With reference to recidivism for the commission of the same infraction, that 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. Within this framework, it must be stated that considering what has been stated regarding the sanctioning antecedents, FONBIENES EAFC does not register sanctions for the commission of the infraction contained in the present administrative sanctioning procedure, in the mentioned period, so the circumstances that configure recidivism are not present;
With respect to the circumstances of the commission of the infraction, it must be indicated that the imputed infraction subject to evaluation occurred on July 13, 2021, the date on which FONBIENES EAFC communicated the results of the assembly of July 08, 2021, incorrectly noting the amount of the final balance of the JULY ASSEMBLY, and generating that in the next assembly, the AUGUST ASSEMBLY, the initial balance was lower, and consequently, the additional award to the SUBSTITUTE ASSOCIATE OF THE AUGUST ASSEMBLY was not made;
With respect to the facts that have been the subject of the charge imputation, in the writing of September 11, 2021, FONBIENES EAFC mentions that the correct final balance of the JULY ASSEMBLY was higher than the one originally informed on July 13, 2021. Likewise, in his writing of November 29, 2021 (as well as in his defense writing) FONBIENES EAFC has recognized that, as a result of an involuntary technical error, he did not award the SUBSTITUTE ASSOCIATE OF THE AUGUST ASSEMBLY;
Likewise, FONBIENES EAFC has alleged in his defense writing that he implemented preventive measures with the objective of avoiding similar situations in the future, as well as reparatory measures aimed at communicating and informing the SUBSTITUTE ASSOCIATE OF THE AUGUST ASSEMBLY about his situation; however, this does not exempt FONBIENES EAFC from its responsibility to comply with the conduct norms established in the REGULATION; in this case, of not having had the due care and diligence in the correct recording of amounts regarding the balances of the JULY ASSEMBLY and the AUGUST ASSEMBLY;
It must be indicated that FONBIENES EAFC, in its capacity as a company supervised by the SMV, has knowledge of the norms that regulate the collective fund system and in that sense, of the conduct norms that are established in the REGULATION; however, it did not comply with them;
For its part, it is observed that the communication of FONBIENES EAFC with the associate regarding the facts subject to charges was made on November 29, 2021 as a result of the requirements made by the SMV through Office 4591-2021-SMV/10.2 notified on November 22, 2021, that is, nearly 4 months had passed for the administrator to adopt measures regarding this, which did not occur as a result of its internal controls, but as a result of the regulator's requirements;

applicable regulation referred to intermediate financial information and management report.

PERU Ministry of Economy and Finance

With respect to the illicit benefit resulting from the commission of the infraction, it must be pointed out that it has not been accredited that FONBIENES EAFC has obtained a benefit that is directly related to the infraction subject of analysis in the present administrative procedure;
With respect to the existence or not of intentionality in the conduct of the offender, it has not been evidenced that FONBIENES EAFC has acted with intentionality in the commission of the infraction subject to charge;
With respect to the probability of detection of the infraction, it must be indicated that through communications of July 13, 20219 and August 13, 202110, FONBIENES EAFC communicated the results of the JULY ASSEMBLY and the AUGUST ASSEMBLY, respectively, which presented the incorrect amounts of the balances of said assemblies; for which reason, the probability of detection of the infraction was high;
In addition to the above, it corresponds to analyze the exempting and mitigating conditions of responsibility established in article 257° of the TUO LPAG, and in articles 2711 and 2612 of the SANCTIONS REGULATION, respectively;
Regarding this, it must be indicated that the exempting condition of responsibility for the voluntary remediation of the act, prior to the notification of the charge office, is not applicable, as evaluated previously in this resolution;
On the other hand, with respect to the recognition of responsibility of the offender (article 257, numeral 2, clause a) of the TUO LPAG), established in article 26, clause a) of the SANCTIONS REGULATION, it must be indicated that FONBIENES EAFC, according to what is stated in the defenses, has not recognized its responsibility expressly, in writing, and unconditionally, within the deadline

9
File No. 2021026949.
10 File No. 2021031460.
11 “Article 26.- MITIGATING CONDITIONS OF RESPONSIBILITY FOR INFRACTIONS The following constitute mitigating conditions of responsibility for infractions:
a) Recognition of responsibility of the offender 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 deadline granted for the presentation of defenses, the amount of reduction will be fifty percent (50%).
If the recognition is presented after the expiration of the deadline granted for the presentation of defenses and before the expiration of the deadline granted to formulate allegations to the instruction report, the amount of reduction will be thirty percent (30%).
If the recognition is presented after the expiration of the deadline granted to formulate allegations to the instruction report and until before the issuance of the sanctioning resolution, the amount of reduction will be ten percent (10%).
The recognition of responsibility regarding an infraction must be carried out in a precise, concise, clear, express and unconditional manner, and must not contain ambiguous or contradictory expressions; otherwise, it will not be understood as a recognition. If defenses are presented, despite having made a recognition of responsibility, it will be understood as a non-recognition, and the authority will proceed to evaluate the defenses. b) Contribution of the offender to the clarification of the infraction. c) The remediation carried out after its requirement or the start of the administrative sanctioning procedure. 12 “Article 27.- EXEMPTING CONDITIONS OF RESPONSIBILITY FOR INFRACTIONS The following constitute exempting conditions of responsibility for infractions:
a) Voluntary remediation by the possible sanctioned person of the act or omission imputed as constitutive of an administrative infraction, prior to the notification of the imputation of charges referred to in clause 3) of article 253 of the LPAG and provided that no communication demanding compliance with the obligation has been issued.

PERU Ministry of Economy and Finance

granted for the presentation of defenses, regarding the commission of the infraction subject of the present sanctioning procedure. Likewise, the mitigating condition referred to the remediation of the infraction, established in article 26, clause c) of the SANCTIONS REGULATION, has not been configured;

Now, with respect to the mitigating factor referred to the contribution to the clarification of the infraction, established in article 26, clause b), of the SANCTIONS REGULATION, it must be indicated that FONBIENES EAFC has contributed to the clarification of the infraction committed, narrating the actions taken after the observed fact was committed as well as providing information to the requirements of the SMV. Consequently, the mitigating factor of responsibility indicated applies to him;
From the foregoing, it has been determined that FONBIENES EAFC incurred an infraction of a serious nature, by contravening what is provided in Annex I, numeral 2, clause 2.25 of the SANCTIONS REGULATION, by: “Not having, approving, implementing, nor complying with or modifying them without communicating them to the SMV, within the corresponding deadline, the conduct norms, the internal conduct norms, or code of conduct, according to the regulations of the matter, or not approving a control procedure for said norms”;
In this sense, FONBIENES EAFC, in accordance with article 38 of the SANCTIONS REGULATION, for the commission of an infraction of a serious nature is subject to being sanctioned with a fine greater than twenty-five (25) UIT and up to fifty (50) UIT;
However, according to the sanctioning criteria analyzed in application of the Principle of Reasonableness contemplated in article 248°, numeral 3 of the TUO LPAG, which states that sanctions must be proportional to the non-compliance qualified as an infraction, it must be considered that it has not been evidenced that the infraction committed by FONBIENES EAFC has caused damage to the public interest, nor that it has had repercussion in the market, or that it has obtained any illicit benefit for the commission of the imputed infraction and that no intentionality was evidenced in its action; likewise, it must be taken into account that the collective fund administrator company is not a recidivist with respect to the referred infraction, as well as the actions taken with the aim of mitigating the damage caused to the SUBSTITUTE ASSOCIATE OF THE AUGUST ASSEMBLY;
Therefore, this Superintendency considers that it is possible to impose on FONBIENES EAFC a sanction corresponding to a classification lower than that provided for serious infractions, according to what is stated in article 25, last paragraph, of the SANCTIONS REGULATION. In that sense, considering the analysis carried out, it is proposed to impose on FONBIENES EAFC, a sanction applicable to light infractions, according to what is established in article 39° of the SANCTIONS REGULATION;
Being in accordance with what is provided in article 32, numeral 16 of the Regulation of Organization and Functions of the SMV, approved by Supreme Decree No. 216-2011-EF.

PERU Ministry of Economy and Finance

RESOLVES:
Article 1º.- Declare that Fonbienes Perú EAFC S.A. has incurred one (1) infraction of a serious nature typified in Annex I, numeral 2, clause 2.25, of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01, for not having complied with the conduct norms established in the Regulation of the Collective Fund System and its Administrator Companies, approved by SMV Resolution No. 020-2014-SMV/01 and its amendments.
Article 2º.- Sanction Fonbienes Perú EAFC S.A., with a reprimand in accordance with what is provided in article 1° of this resolution.
Article 3º.- This resolution does not exhaust the administrative route, unless it is consented, and may be challenged before the Adjunct Superintendent of Prudential Supervision by filing a reconsideration or appeal appeal before the same, within the period of fifteen (15) business days counted from the day following its notification.
Article 4º.- In the event that this resolution is not subject to challenge through a reconsideration or appeal appeal within the period of fifteen (15) business days of being notified and becomes final, it must be published on the Institutional Page of the SMV in the Unique Digital Platform of the Peruvian State, in observance of what is provided by numeral 1, article 7° of the Policy on diffusion of normative projects, legal norms of a general character, early agenda and other administrative acts of the SMV, approved by SMV Resolution No. 014-2014-SMV/01 and its amendment, and by what is provided in article 14° of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01.
Article 5º.- Transcribe this resolution to Fonbienes Perú EAFC S.A.
Register, communicate and publish.
Omar Gutiérrez Ochoa
Adjunct Superintendent
Adjunct Superintendent of Prudential Supervision

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