Adjunct Superintendent Resolution SMV No. 009-2025-SMV/11

PERU Ministry of Economy and Finance

SMV
Securities Market
Superintendency
Adjunct Superintendent Resolution SMV
No. 009-2025-SMV/11
Lima, January 22, 2025
Subject: Sanction Cervecería San Juan S.A. with a total fine of 13.49 UIT for having committed five (05) minor infractions typified in subsection 3.1 of paragraph 3 of Annex I of the Sanctions Regulation. Administered Entity: CERVECERÍA SAN JUAN S.A. Subject: Administrative Sanctioning Procedure of single administrative instance Main Type: Subsection 3.1 of paragraph 3 of Annex I of the Sanctions Regulation MINOR INFRACTIONS File No.: 2024022749 The Adjunct Superintendent of Market Conduct Supervision SEEN:
Administrative file No. 2024022749, containing the administrative sanctioning procedure initiated by the General Office of Conduct Compliance of the Securities Market Superintendency – SMV (hereinafter, the IGCC), against Cervecería San Juan S.A. (hereinafter, the Issuer); as well as Report No. 1511-2024-SMV/11.2 (hereinafter, the Report), issued by the IGCC; CONSIDERING:
I. FUNCTION AND COMPETENCE OF THE SASCM

1. That, the IGCC –the instructing body of the administrative sanctioning procedures (hereinafter, the PAS) referred to in this case–, has brought to the knowledge of the Adjunct Superintendency of Market Conduct Supervision of the SMV (hereinafter, SASCM), the PAS of administrative file No. 2024022749, in order for it to issue a decision as the sanctioning body of single administrative instance, according to the type of infractions evaluated in said PAS. In this way, the SASCM assumes competence in observance of the exercise of the supervision function and the sanctioning faculty of the SMV established through the Unified Concorded Text of its Organic Law, Law Decree No. 26126 (hereinafter, LOSMV), and the Unified Ordered Text of the Securities Market Law, Legislative Decree No. 861, approved by Supreme Decree No. 020-2023-EF-1
   (hereinafter, TUO LMV); as well as by what is provided in the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01 (hereinafter, Sanctions Regulation); and, in articles 42 and 43 of the Organization and Functions Regulation of the 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 single administrative instance, according to the type of infractions evaluated whose compliance control corresponds to the referred Adjunct Superintendency. Likewise; the SASCM has the faculties to issue corrective measures aimed at reversing the situation altered by the commission of the infraction;

PERU Ministry of Economy and Finance

SMV
Securities Market
Superintendency sanctioning faculty of the SMV established through the Unified Concorded Text of its Organic Law, Law Decree No. 26126 (hereinafter, LOSMV), and the Unified Ordered Text of the Securities Market Law, Legislative Decree No. 861, approved by Supreme Decree No. 020-2023-EF-1 (hereinafter, TUO LMV); as well as by what is provided in the Sanctions Regulation, approved by SMV Resolution No. 035- 2018-SMV/01 (hereinafter, Sanctions Regulation); and, in articles 42 and 43 of the Organization and Functions Regulation of the 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 single administrative instance, according to the type of infractions evaluated whose compliance control corresponds to the referred Adjunct Superintendency. Likewise; the SASCM has the faculties to issue corrective measures aimed at reversing the situation altered by the commission of the infraction;
II. FACTS, CHARGES AND DEFENSES OF THE ISSUER
2.1 Facts
2. That, it was evaluated whether the Issuer complied or not with
duly disclosing to the securities market the important facts referred to:
(i) the appointment of External Auditors for the 2023 exercise, (ii) the approval of its audited consolidated annual financial statements for the 2022 exercise, (iii) the approval of its consolidated interim financial statements as of March 31, 2023; and, also whether it complied or not with presenting the following financial information in a timely manner: (iv) audited consolidated annual financial statements for the 2022 exercise; and (v) consolidated interim financial statements as of March 31, 2023;
2.2 Charges
3. That, as a result of said evaluation,
through Letter No. 3976-2024-SMV/11.2 of October 11, 2024 (hereinafter, Letter of Charges), the following charges were formulated against the Issuer:
Late and incomplete communication of important facts

• Charge 1: The incomplete communication of the important fact of March 31,
  2023 referred to; among others, the appointment of External Auditors for the 2023 exercise agreed upon in the Mandatory Annual Shareholders' Meeting of March 31, 2023; however, the Auditing Company that would carry out the audit work was not indicated, which was only communicated on April 05, 2023 through regularization of the important fact of March 31, 2023. (File No. 2023014934).
• Charge 2: To communicate in a late manner the important fact referred
  to the approval of its audited consolidated annual financial statements for the 2022 exercise, which should have been communicated on the same day of the fact, that is, May 02, 2023; however, it was communicated on June 09, 2023. (File No. 2023025992).
• Charge 3: To communicate in a late manner the important fact referred
  to the approval of its consolidated interim financial statements as of March 31, 2023, which should have been communicated on the same day of the fact, that is,

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

PERU Ministry of Economy and Finance

SMV
Securities Market
Superintendency
May 15, 2023; however, it was communicated on May 16, 2023.
(File No. 2023022594).
Late submission of Financial Information

• Charge 4: To present in a late manner its audited consolidated annual financial statements for the 2022 exercise, approved by the General Management on
  May 02, 2023, which should have been presented at the latest by May 02, 2023 2 (legal deadline); however, they were presented on June 09,

2023. (File No. 2023025993).

• Charge 5: To present in a late manner its consolidated interim financial
  statements as of March 31, 2023, approved by the General Management on May 15, 2023, which should have been presented by the latest deadline of May 15, 2023 (legal deadline); however, they were presented on May 16, 2023. (File No. 2023022595).
  2.3 Defenses and Allegations

4. That, the Issuer has not presented its defenses
   despite having been validly notified with the Letter of Charges;
5. That, regarding this matter, it is necessary to indicate that the
   Issuer was validly notified with the Letter of Charges on October 18, 2024 via the MVNet System, as verified from the receipt acknowledgment that is in the log of the MVNet System, in application of what is established in article 37 3 of the Regulation of the MVNet and SMV Virtual System, approved by SMV Resolution No. 004-2024-SMV/01 (hereinafter, MVNet Regulation), which states that the notification has legal effects at the time it is recorded as having been received by the Issuer, according to the date and time registered in the self-generated receipt acknowledgment certificate of the SMV Virtual. Likewise, the regulation provides that if the administered entity does not access the message deposited in the Electronic Mailbox within five (05) business days from the Electronic Notification, it will have legal effects from the next business day after the expiration of this deadline;
6. That, through Supreme Decree No. 004-2019-
   JUS, the Unified Ordered Text of Law No. 27444, General Administrative Procedure Law (hereinafter, TUO of the LPAG), was approved, which contains norms

2 The deadline for the presentation of this financial information is until April 30 of each year; however, during 2023, this date was a Sunday and May 01, 2023 was declared a holiday; consequently, the deadline was extended to the next business day; that is, Tuesday, May 02, 2023. 3 Article 37.- Moment and efficacy of Notifications “37.1 The Electronic Notification procedure is initiated by the SMV with the deposit of the administrative act or administrative action in the Electronic Mailbox of the Users of the SMV Virtual. The SMV Virtual generates automatically the Electronic Notification Certificate. Likewise, the SMV communicates to the email and cell phone of the Users of the SMV Virtual, the data of the validly made notification.
37.2 The Users of the SMV Virtual must carry out the receipt confirmation through the Receipt Acknowledgment Certificate during the five (05) first business days following the validly made notification. The
Electronic Notification has legal effects at the time it is recorded as having been received by the User of the SMV Virtual, according to the date and time registered in the self-generated Receipt Acknowledgment Certificate by the SMV Virtual.
37.3 However, if the User of the SMV Virtual does not access the message deposited in their Electronic Mailbox in
a period of five (05) business days from the Electronic Notification being made, it has legal effects from the next business day after the expiration of this deadline.
37.4 Exceptionally, as determined by the organs or organizational units of the SMV, acts or administrative actions can be notified
in cases that require greater speed in the processing of the notification, through personal notification, in addition to the notification via electronic mailbox. In these cases, the notification that first proves effective will prevail, according to law.” (underline added)

PERU Ministry of Economy and Finance

SMV
Securities Market
Superintendency common for the actions of the administrative function of the State and regulates all administrative procedures developed in the entities, including the special procedures. Likewise, paragraph 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) 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;
7. 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 submitted to the knowledge of the SASCM;
8. That, in observance of what is provided by paragraph 5 of article 255 of the TUO of the LPAG, through Letter No. 5327-2024-SMV/11 of
November 22, 2024, the Report was sent to the Issuer so that it could formulate its allegations within a period of five (05) business days; however, despite being legally notified via the MVNet System in accordance with the MVNet Regulation, to date, it has not presented them;
III. MATTERS TO BE DETERMINED
9. That, in the present PAS it is necessary to determine
the following:
(i) Whether the Issuer incurred or not in the infractions indicated in the Letter of Charges and Report; (ii) Whether it is appropriate or not to impose a sanction on the Issuer;
IV. ANALYSIS
4.1 Applicable Normativity
PRESENTATION OF IMPORTANT FACTS
10. That, article 30 of the TUO of the LMV
states: “The registration of a certain security or issuance program entails for its issuer the obligation to inform the SMV and, if applicable, to the respective stock exchange or entity responsible for the conduct of the centralized trading mechanism, of the important facts, including ongoing negotiations, regarding itself, the security and the offer made of it, as well as to disclose such facts in a truthful, sufficient and timely manner. (…)”. (Underline added);
11. That, paragraph 9.1 of article 9 of the Regulation
of Important Facts and Reserved Information, approved by SMV Resolution No. 005-2014-SMV/01 (hereinafter, Regulation of Important Facts), states:
“The Issuer must inform of its important fact as soon as such fact occurs or the Issuer takes knowledge of it, and in no case later than the day on which this has occurred or has been known (…)”. (Underline added);
12. That, paragraph 5.1 of article 5 of the Regulation
of Important Facts states the following: “In the Annex that forms part of the present Regulation, an enumerative list of facts, acts, agreements and decisions is included, which aims to facilitate the Issuer's identification, qualification and classification of the information that could qualify as an important fact.” It should be specified that the reference to Annex corresponds to Annex 1 of the mentioned

PERU Ministry of Economy and Finance

SMV
Securities Market
Superintendency regulation;
13. That, according to paragraphs 10 and 11 of
Annex 1 of the Regulation of Important Facts, the following may qualify as important facts:
“10. Approval and presentation of financial information, annual report, as well as their respective modifications or corrections. The respective financial information and annual report must be attached, as applicable.
11. Appointment and resolution of contract with its auditing company.” (Underline
added)
PRESENTATION OF FINANCIAL INFORMATION
14. That, articles 10 and 13 of the TUO of the LMV
establish that all information that by provision of said law must be presented to the SMV must be timely, sufficient and truthful, likewise, that the issuer of securities registered in the Public Registry of the Securities Market (RPMV) is obliged to present the information that said law and other provisions of a general nature establish, respectively;
15. That, regarding this matter, article 31 of the TUO of the
LMV states: “What is established 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 conduct of the centralized trading mechanism, of the information that one or the other requires from it and, necessarily, the following:
a) Its financial statements and indicators, with the minimum information generally indicated by the SMV, with a periodicity not greater than quarterly; and, b) Its annual report, with the minimum information generally established by the SMV (…)”. (Underline added);
16. That, regarding the deadline for the approval and
presentation of consolidated interim financial statements of the first quarter (closing date as of March 31 of each year), articles 4 and 5 of the Norms on Preparation and Presentation of Financial Statements and Annual Report by Entities Supervised by the SMV, approved by SMV Resolution No. 016- 2015-SMV/01 (hereinafter, Norms on Preparation and Presentation of FS), in force at the time the facts occurred, establish that issuers with values registered in the RPMV are obliged to prepare, together with the Management Report, individual and consolidated interim financial statements, and must present such financial information on the day it was approved by the corresponding body, and in no case later than the day on which this has occurred, being the deadline for its approval and respective presentation May 15 of each year;
17. That, regarding the deadline for the approval and
presentation of audited consolidated annual financial statements, articles 7 and 8 of the Norms on Preparation and Presentation of FS, in force at the time the facts occurred, establish that the parent company of issuer societies with securities registered in the RPMV, of legal entities registered in the RPMV, and of fund management companies are obliged to present their audited consolidated annual financial statements when such parent company or its securities are registered in the RPMV, on the day they were approved by the corresponding corporate body, being the deadline for approval and respective presentation April 30 of each year. (Underline added);

PERU Ministry of Economy and Finance

SMV
Securities Market
Superintendency
18. That, it should be noted that on December 10, 2023,
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, were published in the Official Journal El Peruano, which are in force from December 11, 2023 (hereinafter, new Norms on Preparation, Presentation and Dissemination of FS);
19. That, according to articles 16 4 and 17 5 of the
new Norms on Preparation, Presentation and Dissemination of FS, the obligations and deadlines regarding the presentation of audited consolidated annual financial statements and consolidated interim financial statements are maintained, obligations that are evaluated in the present administrative sanctioning procedure;
20. That, for the purpose of determining possible
sanctions, these infractions are typified in subsection 3.1 of paragraph 3 of Annex I of the Sanctions Regulation, which states that it constitutes a minor infraction: “To present outside the established deadline, or to present it in an incomplete manner, or, without observing the technical specifications approved by the SMV or without communicating the approval by the corresponding corporate body, to the SMV, to the Stock Exchange, to the entity in charge of the centralized trading mechanism or to any other entity or subject of the securities market, the individual or consolidated audited financial information, the individual or consolidated interim financial statements, management report, special audit report, important facts, and annual reports.” (Underline added);
21. That, according to article 35 of the Sanctions
Regulation, minor infractions are sanctionable with a reprimand or a fine not less than one (1) UIT and up to twenty-five (25) UIT;
4.2 Evaluation of the case
22. That, in administrative file No.
2024022749, which contains the documentation of the present PAS, it is appreciated that through Memorandum No. 1954-2023-SMV/11.1 of May 23, 2023 (File No. 2023021412) and Memorandum No. 3035-2023-SMV/11.1 of July 24, 2023 (File No. 2023031678), the General Office of Conduct Supervision (hereinafter, IGSC) –the body of the SMV that has within its functions and faculties, the supervision of compliance with the norms applicable to

4 Article 16.- Consolidated financial statements
16.1 The obligated subjects, when they are controllers of societies or entities other than (subsidiaries), according to
IFRS, must present their consolidated financial statements without prejudice to the obligation to present their separate financial statements.
16.2 The audited consolidated annual financial statements have a closing date of December 31.
16.3 The consolidated interim financial statements must refer to the following closing dates: March 31, June 30, September 30 and December 31 of each year.
16.4 The provisions of articles 11 and 12 of the Norms are also applicable to consolidated financial statements, insofar as the auditing company and the issuance of the corresponding audit report are concerned.
5 Article 17.- Approval and presentation deadline
17.1 The consolidated annual or interim financial statements must be approved by the competent body.
17.2 In the case of issuers, the consolidated annual or interim financial statements must be presented
and disseminated to the SMV on the date of their approval.
17.3 April 30 is the deadline date for the presentation of audited consolidated annual financial statements. Regarding fund management companies, the deadline date is May 15 and in the case of Intermediation Agents, March 31 of each year.
17.4 May 15, August 15, November 15 and March 1 of the following year are the deadline dates
established for the presentation of consolidated interim financial statements of the first, second, third and fourth quarters, respectively. The financial statements must be digitally signed by a public accountant licensed to practice the profession and by the legal representative of the obligated subject.

PERU Ministry of Economy and Finance

SMV
Securities Market
Superintendency issuer companies with securities registered in the RPMV, evaluating the indications of possible infractions, and sends, for its consideration, the reports of indications of infringement respective, to the IGCC–, sent to the IGCC, the result of its evaluation, and specifically what refers to the present case;
23. That, it must be kept in mind that the
procedures and legal forms with which the IGSC conducts its activity of inspection and/or supervision and upon concluding it with a report of indications of infraction, determine that its pronouncement or opinion on a specific topic of supervision –which can even contain a decision, for example, the adoption of corrective measures–, is an opinion on the merits of the matter; it must be specified that such opinion and the report of indications of infraction of the IGSC is not binding for the IGCC, as established in the second paragraph of
article 9 of the Sanctions Regulation 6 7
;
24. 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 (02) other organs or administrative instances of the SMV, functionally independent among themselves and from this Office; first the IGSC which at its opportunity reported the indications of infraction and then the IGCC which, as a result of its evaluation, formulated the Letter of Charges and the Report; and at this point of the PAS it corresponds to the Office of the SASCM, to issue a pronouncement containing its decision regarding the charges mentioned, being precise to indicate that by the nature of the same, as has been indicated previously, it will be a decision of single administrative instance;
25. That, previously, it must be pointed out that at
the date of issuance of the Report, by the IGCC the Issuer did not send the defenses corresponding to the charges formulated, despite being validly notified on October 18 2024;
26. That, in that sense, with respect to the
non-compliances detailed in the Letter of Charges, it proceeds to carry out the following evaluation:

6 Article 245 of the TUO of the LPAG indicates the following as forms or modes in which the inspection activity could be concluded: 1) Certificate of conformity of the activity developed by the regulated party; 2) Recommendation of improvements or corrections to the activity developed by the regulated party; 3) Warning of the existence of non-compliance not susceptible of warranting the determination of administrative responsibilities; 4) Recommendation to initiate a procedure to determine the corresponding administrative responsibilities; 5) Adoption of corrective measures; and 6) Other forms as established by special laws.

7 “Article 9.- Preliminary inquiries as a consequence of supervision actions

(…)

When these bodies conclude that there are sufficient indications of possible administrative infractions, they remit the corresponding reports to the General Inspectorates of Compliance, which determine whether or not to initiate an administrative sanctioning procedure. If so, the General Inspectorates 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 Inspectorate of Investigation and Innovation, a dependency that, if there are sufficient indications of possible administrative infractions, will determine whether or not to initiate an administrative sanctioning procedure.

(…)”.

PERU Ministry of Economy and Finance

SMV
Securities Market
Superintendency

IMPORTANT EVENTS

Charge No. 1: Late and incomplete communication of important events

Regarding this matter, from the verifications carried out by the General Inspectorate on the information published on the SMV Institutional Page on the Peruvian State’s Unified Digital Platform for Citizen Orientation (hereinafter, SMV Institutional Page), it was noted that the Issuer on March 31, 2023 (File No. 2023014934) communicated as an important event that, among other things, the appointment of External Auditors for the 2023 fiscal year was approved at the Annual Mandatory Shareholders’ Meeting of March 31, 2023; however, it did not indicate the Audit Firm that would carry out the audit work, which was only communicated on April 5, 2023, through regularization of the important event of March 31, 2023, in which it stated that Gaveglio, Aparicio and Associates Civil Society of Limited Liability was designated as the Audit Firm for the 2023 fiscal year.

In this sense, from what was previously mentioned, it is understood that the communication of the appointment of the audit firm for the 2023 fiscal year should have been communicated on the same day, that is, March 31, 2023; however, it was communicated on April 5, 2023; that is, with a (01) calendar day delay.

Charges No. 2 and 3: Late communication of important events regarding financial information

Charges No. 2 and 3 were formulated due to the late communication of the important events referred to the approval of: i) the audited annual consolidated financial statements as of December 31, 2022; and, ii) the consolidated interim financial statements as of March 31, 2023.

From the review of the information disseminated as important events on the SMV Institutional Page, it is observed that the Issuer did not comply with communicating the aforementioned information within the established deadlines, doing so late in the following manner:

• Important event registered with File No. 2023025992, referring to the approval of the audited annual consolidated financial statements of the 2022 fiscal year by the General Management, communicated on June 9, 2023; that is, with thirty-eight (38) calendar days of delay.
• Important event registered with File No. 2023022594, referring to the approval of the consolidated interim financial statements as of March 31, 2023 by the General Management, communicated on May 16, 2023; that is, with one (01) calendar day of delay.

FINANCIAL INFORMATION

Charges No. 4 and 5: Late submission of financial information

Charges No. 4 and 5 were formulated due to the late submission of: i) the audited annual consolidated financial statements of the 2022 fiscal year, and ii) the consolidated interim financial statements as of March 31, 2023.

From the review of the information disseminated as important events on the SMV Institutional Page, it is observed that the Issuer did not comply with presenting the aforementioned information on the same day of its approval; that is, within the deadlines established in the Standards on Preparation and Presentation of FS,

PERU Ministry of Economy and Finance

SMV
Securities Market
Superintendency

by presenting it late in the following manner:

• Submission of the audited annual consolidated financial statements of the 2022 fiscal year registered with File No. 2023025993, on June 9, 2023; that is, with thirty-eight (38) calendar days of delay.
• Submission of the consolidated interim financial statements as of March 31, 2023 registered with File No. 2023022595, on May 16, 2023; that is, with one (01) calendar day of delay.

Consequently, the conduct constitutive of the five (05) infractions is proven, and the administrative responsibility of the Issuer is determined, for which reason, it is necessary to analyze the sanction proposal in accordance with the principle of reasonableness and the sanction criteria, which will be evaluated in the section on the determination of the sanction.

V. DETERMINATION OF THE SANCTION

27. That, for the purpose of determining possible sanctions, the infractions regarding late and incomplete communication of important events as well as the late submission of financial information must be noted that, according to what is provided in paragraph 3.1 of numeral 3 of Annex I of the Sanctions Regulation, it states that it constitutes a minor infraction: “To submit outside the established deadline, or to do so incompletely, or, without observing the technical specifications approved by the SMV or without communicating the approval by the corresponding corporate body to the SMV, to the Stock Exchange, to the entity in charge of the centralized trading mechanism or to any other entity or subject of the securities market, the individual or consolidated audited financial information, the individual or consolidated interim financial statements, management report, special audit report, important events, and annual reports.” (Highlight added);

28. That, according to what is established in article 35 of the Sanctions Regulation, it corresponds that these infractions be sanctioned with a reprimand or a fine not less than one (1) UIT and up to the limit of twenty-five (25) UIT.

29. That, for the purpose of analyzing the applicable sanction proposal, having determined the commission of the infractions subject of the present PAS, it corresponds to determine the sanction to be imposed on the Issuer considering the sanction criteria established in article 25 of the Sanctions Regulation, concordant with numeral 3) of article 248 of the TUO of the LPAG, article 344 of the TUO of the LMV and the Criteria applicable to the administrative sanctioning procedure for non-compliance with the regulations regulating the submission of periodic or eventual information, approved by SMV Resolution No. 006-2012-SMV/01 and its amendments (hereinafter, Special Sanction Criteria), in force at the time of the commission of the infractions;

30. That, it must be indicated that through article 1 of Resolution No. 007-2023-SMV/01 of September 4, 2023, the Gradual Sanction Regime for late submission of financial information, annual report and important events was approved (hereinafter, New Gradual Sanction Regime), whose article 4 provided for its validity starting from January 1, 2024; and in article 2 of the aforementioned Resolution, the Special Sanction Criteria are repealed;

31. That, in view of the foregoing and considering that

PERU Ministry of Economy and Finance

SMV
Securities Market
Superintendency

the regulation has been modified during the processing of the present administrative sanctioning procedure, it corresponds to analyze whether in the present case the provisions of the New Gradual Sanction Regime should be applied by virtue of the Principle of Retroactive Favorability, established in numeral 5 of article 248 of the TUO of the LPAG, which states that: “(…) the sanctioning provisions in force at the time the regulated party incurs in the conduct to be sanctioned are applicable, unless the subsequent ones are more favorable to them”;

32. That, according to what was previously mentioned, regarding the sanction criteria, it proceeds to analyze: (i) the sanctioning antecedents of the issuer, (ii) recidivism, (iii) the circumstances of the commission of the infraction, (iv) the economic damage caused and its repercussion in the market, (v) the illicit benefit resulting from the commission of the infraction, (vi) the probability of detection of the infraction, (vii) the gravity of the damage to the public interest and/or protected legal good and (viii) the existence or non-existence of intent in the conduct of the offender;

33. That, regarding the sanctioning antecedents, paragraph a) of article 25 of the Sanctions Regulation establishes that they are the firm sanctions imposed by the SMV within the period of four (4) years prior to the commission of the infraction to be sanctioned; without prejudice to this, without prejudice to this, it is clarified that the commission of the same infraction in the year prior to the infraction to be sanctioned is not considered as an antecedent. On this particular, from the verification carried out in the SMV Sanctions System, it has been determined that the Issuer has sanctioning antecedents, as detailed in the Report;

34. That, regarding recidivism for the commission of the same infraction, it is opportune to note that the Special Sanction Criteria, in force at the time of the commission of these facts, did not include recidivism as a criterion to be taken into account for the application of the sanction; this criterion was only incorporated in the New Gradual Sanction Regime; in force at the time of elaborating the present instruction report, which establishes in numeral 5.2 that “It is considered that there is recidivism, if during the year prior to the commission of the infraction to be sanctioned, one has been sanctioned for an infraction of the same nature as the one intended to be sanctioned, provided that such sanction has become firm during said period”, likewise, the New Gradual Sanction Regime states that for the purpose of determining recidivism as an aggravating factor, a quantum of up to 10% has been established that would be added to the fine proposal, if it is verified that the offender is a recidivist. Regarding this, it has been verified that there is no recidivism on the part of the Issuer according to what was evaluated in the Report;

35. That, as for the circumstances of the commission of the infraction, it must be noted that, from the verification of the information disseminated by the issuers on the SMV Institutional Page, the following is noted:

• The communication regarding the appointment of Gaveglio, Aparicio and Associates Civil Society of Limited Liability as the Audit Firm, made on March 31, 2023; was communicated on April 5, 2023 (with five (05) calendar days of delay).
• The communication of the approval of the audited annual consolidated financial statements of the 2022 fiscal year by the General Management, made on May 2, 2023; was communicated on June 9, 2023 (with thirty-eight (38) calendar days of delay).
• The communication of the approval of the consolidated interim financial statements as of March 31, 2023 by the General Management, made on May 15, 2023; was communicated on May 16, 2023 (with one (01) calendar day of delay).
• The audited annual consolidated financial statements of the 2022 fiscal year approved on May 2, 2023; were presented on June 9, 2023 (with thirty-eight (38) calendar days of delay).
• The consolidated interim financial statements as of March 31, 2023 approved on May 15, 2023; were presented on May 16, 2023 (with one (01) calendar day of delay).

36. That, with regard to the economic damage caused and its repercussion in the market, this criterion evaluates quantifiable or non-quantifiable damage produced by the administrative infraction, which includes the evaluation of economic damages caused. In this sense, although there is a damage that affects the market because by not disseminating relevant information such as financial information and important events in a timely manner, there is an impact on the transparency of the securities market, which is considered a protected legal good, it has not been evidenced that the non-compliance has produced a quantifiable damage, understood as an economic damage caused to one or several investors;

37. That, regarding the illicit benefit resulting from the commission of the infraction, it must be noted that there are not sufficient elements to indicate that the Issuer, as a consequence of the infractions committed, has obtained or generated an illicit benefit;

38. That, with regard to the probability of detection of the infraction, it must be noted that the lack of timely submission of periodic or eventual information; is verified through internal control systems, so it is considered that for this type of non-compliance, the probability of detection is high;

39. That, with regard to the gravity of the damage to the public interest and/or protected legal good, it must be indicated that the timely submission of periodic or eventual information by issuers of securities registered in the RPMV constitutes a fundamental obligation in the transparency of the securities market, so that market participants can make their investment decisions adequately informed. Consequently, although there is no evidence of gravity of damage to the public interest, the non-compliance with the obligation to inform the market within the deadline limits on the part of the issuers affects the transparency of the market, which is considered a protected legal good;

40. That, regarding the existence or non-existence of intent in the conduct of the offender, it can be noted that there are not sufficient elements to indicate that the Issuer acted with intent in the commission of the infractions, so this criterion would not have been configured. However, it is necessary to indicate that despite there being no indications to suggest that the Issuer acted with intent, it can be affirmed that the conduct of the Issuer was negligent, by not acting with the diligence required for obligations already known by the Issuer;

PERU Ministry of Economy and Finance

SMV
Securities Market
Superintendency

41. That, consequently, as indicated above, considering that the New Gradual Sanction Regime entered into force on January 1, 2024 and the present PAS is in process (instruction phase), it corresponds to analyze if this new regulation is more beneficial or not for the determination of the sanction to be imposed, by virtue of the Principle of Retroactive Favorability, established in numeral 5 of article 248 of the TUO of the LPAG, by which it is possible to apply subsequent sanctioning norms to the commission of the offense as long as they benefit the regulated party, it will proceed to grade the corresponding sanction taking into account the Sanction Criteria and also the New Gradual Sanction Regime;

42. That, with regard to the antecedents, the Sanction Criteria 8 establish that “it will increase by two percent (2%) if it is determined that the infringing subject has sanctioning antecedents and by three (3%) if it has antecedents of the same conduct that is intended to be sanctioned.”, likewise, the New Gradual Sanction Regime states that “The amount resulting from the application of the guidelines contemplated in numeral 6.2 can be increased up to five percent (5%) if it is accredited that the infringing subject has sanctioning antecedents”, without making distinction on whether they correspond to different or the same type of infringer. Therefore, in order to determine which is the most beneficial rule, it was considered that the application of the new regulation will increase one percent (1%) for each sanction resolution that constitutes the antecedent up to a maximum of five percent (5%). In the present case, since two (02) sanctioning antecedents have been identified, it is more beneficial to apply two percent (2%) in the calculation of the fine under the New Gradual Sanction Regime.

43. That, with regard to recidivism, the Sanction Criteria did not regulate this criterion for its quantification and the New Gradual Sanction Regime states that “The amount resulting from the application of the guidelines contemplated in numeral 6.2 can be increased (…) up to ten percent (10%) if it is verified that the infringing subject is a recidivist”; in this sense, it is considered that it will increase by five percent (5%) when the Issuer has one (01) sanction resolution that grants recidivism or ten percent (10%) when it has two (02) or more sanction resolutions that grant recidivism. Regarding this, since it has been verified that there is no recidivism on the part of the Issuer, it corresponds not to apply this aggravating factor at the time of determining the fine to be imposed.

44. That, in this sense, it is worth noting that from the review of the Special Sanction Criteria and the New Gradual Sanction Regime, we agree with what was determined by the IGCC in the Report, that in all the infractions subject to charges it is more favorable to apply the Special Sanction Criteria, in force at the time of the commission of the infractions, therefore it corresponds to impose a total fine of 13.49 UIT 9 equivalent to S/ 66,787.88 (Sixty-Six Thousand Seven Hundred Eighty-Seven and 88/100 Soles), according to the following detail:

1. For the infraction referred to the late communication of the important event referred to the designation of Gaveglio, Aparicio and Associates Civil Society of Limited Liability as the Audit Firm for the 2023 fiscal year, it corresponds to apply a fine of 1.58 UIT equivalent to S/ 7,796.25 (Seven Thousand Seven Hundred Ninety-Six and 25/100 Soles).

2. For the infraction referred to the late communication as an important event of the approval of the audited annual consolidated financial statements of the 2022 fiscal year, it corresponds to apply a fine of 3.15 UIT equivalent to S/ 15,592.50 (Fifteen Thousand Five Hundred Ninety-Two and 50/100 Soles).

3. For the infraction referred to the late communication as an important event of the approval of the consolidated interim financial statements as of March 31, 2023, it corresponds to apply a fine of 0.32 UIT equivalent to S/ 1,559.25 (One Thousand Five Hundred Fifty-Nine and 25/100 Soles).

4. For the infraction referred to the late submission of the audited annual consolidated financial statements of the 2022 fiscal year, it corresponds to apply a fine of 6.30 UIT equivalent to S/ 31,185.00 (Thirty-One Thousand One Hundred Eighty-Five and 00/100 Soles).

5. For the infraction referred to the late submission of the consolidated interim financial statements as of March 31, 2023, it corresponds to apply a fine of 2.15 UIT equivalent to S/ 10,654.88 (Ten Thousand Six Hundred Fifty-Four and 88/100 Soles), and;

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

RESOLVES:

Article 1º.- Declare that Cervecería San Juan S.A., has incurred five (05) minor infractions typified in paragraph 3.1 of numeral 3 of Annex I of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01, referred to: (i) the incomplete communication of the important event of March 31, 2023 referred to; among others, the appointment of External Auditors for the 2023 fiscal year agreed at the Annual Mandatory Shareholders’ Meeting of March 31, 2023. (Charge 1), (ii) the late communication of the important event referred to the approval of its audited annual consolidated financial statements of the 2022 fiscal year, which should have been communicated on the same day of the event, that is, May 2, 2023. (Charge 2), (iii) the late communication of the important event referred to the approval of its consolidated interim financial statements as of March 31, 2023, which should have been communicated on the same day of the event, that is, May 15, 2023. (Charge 3), (iv) the late submission of its audited annual consolidated financial statements of the 2022 fiscal year, approved by the General Management on May 2,

9 Supreme Decree No. 309-2022-EF set the UIT for the 2023 fiscal year at S/ 4,950.00.

PERU Ministry of Economy and Finance

“4.2. Guidelines for the application of the criteria

(…)

(iv) In case that a reprimand sanction does not correspond, the competent bodies of the SMV must observe the following guidelines referred to the circumstances of the commission of the infraction:

(…)

Regarding non-compliance in the communication of eventual information, such as important events

☘ For each calendar day of delay, thirty percent (30%) of one (1) UIT will be added up to a maximum of three (3) UIT.

(…)”

(v) The amount resulting from the guidelines contemplated in the preceding numeral (iv) will be increased by two percent (2%) if it is determined that the infringing subject has sanctioning antecedents and by three (3%) if it has antecedents of the same conduct that is intended to be sanctioned.”

PERU Ministry of Economy and Finance

SMV
Securities Market
Superintendency

that it corresponds to impose a total fine of 13.49 UIT 9 equivalent to S/ 66,787.88 (Sixty-Six Thousand Seven Hundred Eighty-Seven and 88/100 Soles), according to the following detail:

1. For the infraction referred to the late communication of the important event referred to the designation of Gaveglio, Aparicio and Associates Civil Society of Limited Liability as the Audit Firm for the 2023 fiscal year, it corresponds to apply a fine of 1.58 UIT equivalent to S/ 7,796.25 (Seven Thousand Seven Hundred Ninety-Six and 25/100 Soles).

2. For the infraction referred to the late communication as an important event of the approval of the audited annual consolidated financial statements of the 2022 fiscal year, it corresponds to apply a fine of 3.15 UIT equivalent to S/ 15,592.50 (Fifteen Thousand Five Hundred Ninety-Two and 50/100 Soles).

3. For the infraction referred to the late communication as an important event of the approval of the consolidated interim financial statements as of March 31, 2023, it corresponds to apply a fine of 0.32 UIT equivalent to S/ 1,559.25 (One Thousand Five Hundred Fifty-Nine and 25/100 Soles).

4. For the infraction referred to the late submission of the audited annual consolidated financial statements of the 2022 fiscal year, it corresponds to apply a fine of 6.30 UIT equivalent to S/ 31,185.00 (Thirty-One Thousand One Hundred Eighty-Five and 00/100 Soles).

5. For the infraction referred to the late submission of the consolidated interim financial statements as of March 31, 2023, it corresponds to apply a fine of 2.15 UIT equivalent to S/ 10,654.88 (Ten Thousand Six Hundred Fifty-Four and 88/100 Soles), and;

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

RESOLVES:

Article 1º.- Declare that Cervecería San Juan S.A., has incurred five (05) minor infractions typified in paragraph 3.1 of numeral 3 of Annex I of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01, referred to: (i) the incomplete communication of the important event of March 31, 2023 referred to; among others, the appointment of External Auditors for the 2023 fiscal year agreed at the Annual Mandatory Shareholders’ Meeting of March 31, 2023. (Charge 1), (ii) the late communication of the important event referred to the approval of its audited annual consolidated financial statements of the 2022 fiscal year, which should have been communicated on the same day of the event, that is, May 2, 2023. (Charge 2), (iii) the late communication of the important event referred to the approval of its consolidated interim financial statements as of March 31, 2023, which should have been communicated on the same day of the event, that is, May 15, 2023. (Charge 3), (iv) the late submission of its audited annual consolidated financial statements of the 2022 fiscal year, approved by the General Management on May 2,

9 Supreme Decree No. 309-2022-EF set the UIT for the 2023 fiscal year at S/ 4,950.00.

PERU Ministry of Economy and Finance

SMV
Superintendencia del Mercado de Valores
2023, which should have been submitted at the latest by May 02, 2023.
(Cargo 4), and; (v) the late submission of its interim consolidated financial statements as of March 31, 2023, approved by the General Management on May 15, 2023, which should have been submitted by the deadline of May 15, 2023. (Cargo 5).
Article 2º.- Sanction Cervecería San Juan S.A.,
with a total fine of 13.49 UIT equivalent to S/ 66, 787.88 (Sixty Six Thousand Eight Hundred Eighty Seven and 88/100 Soles) pursuant to article 1° of the present Resolution.
Article 3º.- This Resolution does not exhaust the administrative
route, it being possible to challenge it before this Adjunct Superintendency of Supervision of Market Conducts by filing the reconsideration appeal, an administrative remedy recognized in article 218 of the Unified Text of Ordered Law No. 27444, General Administrative Procedure Law, approved by Supreme Decree No. 004-2019-JUS, within a period of fifteen (15) business days counted from the day following its notification, given that it is a procedure of a single administrative instance. In case this Resolution is not challenged, it may avail itself of the regime for reduction of the corresponding sanction.
Article 4º.- In case this Resolution is
not subject to challenge, it shall be published on the “Institutional Page of the SMV on the Unique Digital Platform of the Peruvian State for Citizen Orientation (www.gob.pe/smv)”, in observance of what is provided in numeral 1 of
article 7 of the “Policy on dissemination of normative projects, general 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 5º.- Transcribe this Resolution to
Cervecería San Juan S.A.
Register, communicate and publish.
Carlos Rivero Zevallos
Adjunct Superintendent
Adjunct Superintendency of Supervision of Market Conducts