CONASEV Resolution No. 035-2011 — SMV — PE

Lima, May 23, 2011

VISTOS:

File No. 2008020244, Memorandum No. 249-2011-EF/94.04.1 dated January 31, 2011, and Memorandum No. 543-2011-EF/94.04.1 dated March 3, 2011 from the Legal Advisory Office;

CONSIDERING:

That, by Resolution of the CONASEV Administrative Tribunal No. 374-2008-EF/94.01.3, hereinafter, RESOLUTION1, Industria Textil Piura S.A., hereinafter, TEXTIL PIURA, was sanctioned with a fine equivalent to 6.16 UIT for not timely submitting to CONASEV and to the Lima Stock Exchange, hereinafter BVL, its individual annual audited financial statements corresponding to the 2006 fiscal year, as well as its individual interim financial statements and the management report as of September 30, 2007;

That, on February 5, 2009, TEXTIL PIURA filed a reconsideration appeal against RESOLUTION1;

That, by Administrative Tribunal Resolution No. 296-2010-EF/94.01.3, hereinafter, RESOLUTION2, it was resolved to declare the reconsideration appeal filed by TEXTIL PIURA inadmissible, concluding that the aforementioned appeal was not filed in compliance with what is stated in article 208 of the General Administrative Procedure Law (hereinafter, LPAG), since it was not supported by new evidence;

That, on October 25, 2010, TEXTIL PIURA filed an appeal against the cited resolution, stating the following:

Nullity of the challenged administrative act

RESOLUTION2 does not rule on the merits of the reconsideration appeal, thereby violating the company's right to defense and the principle of due motivation, provided for in articles 139, paragraphs 5 and 14 of the Political Constitution, respectively, since it only limited itself to analyzing the formal requirements of the appeal to finally dismiss it.
The reasons motivating the decision to declare the appeal inadmissible are the result of excessive formalism that violates the Principle of Informalism established in the LPAG.
RESOLUTION2 incurs in a clear transgression of the Principles of Legality and Typicity, since at the time when the administrative offenses allegedly occurred, there was no norm with the rank of law that attributed sanctioning power to CONASEV and/or its internal bodies, the Sanctions Regulation not constituting a norm with the rank of law, and that paragraphs b) and k) of article 11 of the Unified Text of the Organic Law of CONASEV only empower CONASEV to impose administrative sanctions, but not to establish administrative offenses via regulation and even less to typify them.
In accordance with article 10 of the LPAG, an administrative act that violates constitutional or legal norms (right to defense, principles of informalism, legality and typicity) and that also lacks motivation, is an administrative act null ipso jure and therefore cannot have any legal effect.

Substantive challenge of the challenged administrative act

RESOLUTION2 is not based on a concrete and direct exposition of the relevant facts of the specific case related to the pertinent legal norm.
The individual annual audited financial information and annual report corresponding to the 2006 fiscal year, approved in the Mandatory Annual Shareholders' Meeting held on March 14, 2007, was presented timely as evidenced by the copy of the Information Receipt from CONASEV dated March 15, 2007, to which File No. 2007007197 was assigned; subsequently, on March 26, 2007, according to the Information Receipt, the unified structured file was sent with File No. 2007008663.
Regarding the individual interim financial statements and management report as of September 30, 2007, the appellant states that it did comply with the presentation of this information, according to the CONASEV Information Receipt dated October 31, 2007, with File No. 2007031211. It alleges that due to difficulties accessing the MVNet System and in view of the domicile location of TEXTIL PIURA, article 135 of the LPAG applies, a norm according to which, in the computation of deadlines established in the administrative procedure, the term of distance is added.
It corresponds to declare the appeal well-founded and therefore declare the nullity of RESOLUTION, consequently leaving without effect the fine imposed on the company by Administrative Tribunal Resolution No. 374-2008-EF/94.01.3.

That, on February 8, 2011, TEXTIL PIURA filed an amplifying writing, through which it reiterates the arguments exposed in its appeal, stating, additionally, that paragraphs b) and k) of article 11 of the Organic Law of CONASEV, which support the Sanctions Regulation, only empower CONASEV to impose administrative sanctions, but not to establish administrative offenses via regulation and even less to typify them, a power that Law No. 27649 also does not confer, reasons by which the procedure would be vitiated by nullity ipso jure for being contrary to the principle of due process provided for in article 139, paragraph 3 of the Political Constitution;

That, it has been verified that the appeal filed has observed what is provided by articles 207 and 211 of the General Administrative Procedure Law (LPAG), has been filed within the established deadline, and meets the requirements stated in article 113 of the aforementioned law;

That, regarding the argument by virtue of which RESOLUTION2 only limits itself to analyzing the formal requirements to finally dismiss the appeal without ruling on the merits, it is necessary to clarify in the first place that, in accordance with article 208 of the LPAG, the reconsideration appeal will be filed before the same body that issued the first act that is the subject of the challenge and must be supported by new evidence;

That, according to Juan Carlos Morón Urbina, there is no possibility for the authority to change the sense of its decision, just by asking it, since it is estimated that within a line of responsible action it has issued the best decision that its criteria allow in the concrete case and has applied the legal rule it considers suitable; therefore, it would lose seriousness to pretend that it can modify it with just a new request or a new argumentation on the same facts, that is why to enable the possibility of changing criteria, the law requires that a tangible fact not evaluated previously be presented to the authority, which merits reconsideration[1], which is evidenced through new evidence, which in the analyzed case has not been presented;

That, in that sense, and as the aforementioned author points out, when article 208 requires the administrative party to present new evidence as a requirement for the admissibility of the reconsideration appeal, it is requesting that the administrative party present a new source of evidence, which must have a material expression so that it can be valued by the administrative authority;

That, therefore, what is sought by requiring new evidence to file a reconsideration appeal is to justify the review of the analysis already carried out regarding any of the points subject to controversy;

That, providing new evidence along with the filing of a reconsideration appeal against an administrative act constitutes a requirement for the admissibility of said appeal; in that line, it has been verified that RESOLUTION2 in its sixth consideration evaluated and determined that the reconsideration appeal was not filed observing what is provided in article 208 of the LPAG, by not being supported by new evidence, so it corresponded to declare the aforementioned appeal inadmissible;

That, consequently, since the decision adopted in RESOLUTION2 is adequately motivated, no violation of the principle of due motivation or right to defense is found, since the decision was based on the examination of admissibility required by law and also, in the evaluation of the appeal, the free and full exercise of the right to defense was granted to TEXTIL PIURA, who despite being granted the use of the floor for the session of October 1, 2010, did not exercise said right;

That, without prejudice to the fact that RESOLUTION2 was correctly motivated, it is pertinent to point out that the appeal has as its purpose the comprehensive review of the procedure from a fundamentally legal perspective[2]. Therefore, and in attention to said purpose, we will proceed to carry out a review of what was done and analyze the defense arguments presented by TEXTIL PIURA;

That, in relation to the alleged violation of the principle of legality and typicity by RESOLUTION2, we must indicate that, although RESOLUTION2 declares the inadmissibility of a reconsideration appeal and does not impose a sanction, what it does makes it legally impossible that principles of sanctioning power are violated, we consider that, the alleged violation of the principle of legality and typicity refers to RESOLUTION1, so we will proceed to rule on the substantive topics invoked by TEXTIL PIURA;

That, regarding the argument by virtue of which it states that at the time when the administrative offenses allegedly occurred, there was no norm with the rank of law that attributed sanctioning power to CONASEV, the Sanctions Regulation not constituting a norm with the rank of law, and that paragraphs b) and k) of Article 11 of the Organic Law of CONASEV only empower CONASEV to impose administrative sanctions, but not to typify them, it must be indicated that paragraph 4 of article 230 of the General Administrative Procedure Law (LPAG) allows typification via regulation, considering that although we have as a principle the reservation of law in sanctioning matters, it is also established that the law itself can, either by considerations of administrative convenience or technical legal reasons, authorize the administration itself to carry out the typification of the respective offenses via executive regulation[3];

That, it is necessary to clarify that paragraph o) of article 2 of the Unified Text of the Organic Law of CONASEV, approved by Decree Law 26126, incorporated by the Tenth Transitory and Final Provision of Law No. 27649 published on January 23, 2002, a norm prior to the commission of the infractions imputed to TEXTIL PIURA, establishes that it constitutes a function of CONASEV “To typify the infringing conduct of the securities market, products market and collective funds, as well as to dictate the respective corrective measures, when appropriate”;

That, therefore, CONASEV's power to typify infringing conduct, specifically those referred to the timely fulfillment in the delivery of periodic and eventual information, was indeed established in a norm with the rank of law, prior to the commission of the infractions for which TEXTIL PIURA has been sanctioned;

That, in conclusion, it is also not possible to determine that there is a violation by RESOLUTION of the principles of legality and typicity in the present procedure;

That, it now corresponds to evaluate the arguments formulated regarding each of the failures in the timely presentation of financial information in which TEXTIL PIURA incurred;

That, regarding the Annual Individual Audited Financial Statements corresponding to the 2006 fiscal year, it has indeed been proven from the review of File No. 2007007197 that TEXTIL PIURA timely communicated the fact of importance referred to the approval of the annual audited financial information and annual report corresponding to the 2006 fiscal year, accompanying such reference information, however it is only on March 26, 2007, when the company included the corresponding unified file, so that in accordance with the provisions in force at the time of evaluating the omission in question, specifically article 43 of the Regulation of the Public Registry of the Securities Market, approved by CONASEV Resolution No. 079-2007-EF/94.10, financial information is understood to be validly presented when all formalities and technical specifications established are met, which occurs only on March 26, 2007, that is, outside the deadline (March 15, 2007);

That, without prejudice to the fact that the Administrative Tribunal, when determining the commission of the offense referred to the late presentation of the individual audited financial statements corresponding to the 2006 fiscal year and sanctioning said compliance, acted correctly, applying the pertinent and current norms at the date;

That, in that sense, it corresponds to evaluate if there is a subsequent favorable norm that allows a re-examination of the configuration of the failures and the infringing types that were applicable on that occasion and those that are applicable and current today;

That, CONASEV Resolution No. 102-2010-EF/94.01.1, published in El Peruano on October 19, 2010, established in its article 4 that “the financial information that is sent must comply jointly with the following conditions: (i) Presented in a complete manner; (ii) Within the established deadlines; (iii) Observing the technical specifications approved by CONASEV; and, (iv) Communicating the approval by the respective corporate body”;

That, it follows from said article that, the financial information must be presented observing certain conditions that are clearly distinguishable from each other and sanctionable independently, which would allow, for example, that it is presented timely and completely but without observing the technical specifications, which is what has occurred in the case under analysis, and that said behavior has a sanction different from that stated in numeral 3, paragraph 3.1 of the Sanctions Regulation;

That, CONASEV Resolution No. 102-2010-EF/94.01.1 therefore, establishes a new parameter for the evaluation of the requirements for the presentation of financial information different from the one applied on that occasion in the present procedure, since under the previous scheme the information was not considered presented if the technical specifications established by CONASEV were not observed in accordance with article 43 of the Regulation of the Public Registry of the Securities Market, this behavior and non-observation being recorded in Annex I, numeral 3, paragraph 3.1 of the Sanctions Regulation;

That, under that context, from the entry into force of the cited CONASEV Resolution, it is not correct to consider financial information as not presented when it fails to observe the technical specifications established by CONASEV and therefore it is not appropriate to frame said conduct in the infringing type recorded in Annex I, numeral 3, paragraph 3.1 of the Sanctions Regulation, even more so when this Regulation records in paragraph 3.6 of the same numeral 3 as an infringing type the “Failure to remit the documentation or information to which they are obligated by the regulations or by request of CONASEV according to the established technical specifications”, an infringing type that from the publication of CONASEV Resolution No. 102-2010-EF/94.01.1, is correctly applicable to those failures in the presentation of information that do not observe the aforementioned specifications;

That, therefore, upon concluding that for the evaluation of the failure of TEXTIL PIURA referred to the presentation of the individual audited financial statements corresponding to the 2006 fiscal year without observing the technical specifications, the infringing type recorded in Annex I, numeral 3, paragraph 3.6 is currently applicable, it corresponds to leave without effect the sanction imposed and archive the sanctioning procedure regarding this failure;

That, regarding the Individual Interim Financial Statements and management report as of September 30, 2007, it has been verified that the financial information in reference was presented via MVNet, on October 31, 2007, as it follows from File No. 2007031211, having the deadline been October 30, 2007, so the infringement is understood to be correctly configured;

That, TEXTIL PIURA alleges that the failure was configured due to the company's difficulties in accessing the MVNet System, and in that sense article 135 of the LPAG applies;

That, paragraph 1 of article 135 states that “in the computation of deadlines established in the administrative procedure, the term of distance provided between the place of domicile of the administrative party within the national territory and the place of the nearest reception unit authorized to carry out the respective action is added”;

That, in attention to the geographic factor that separates the administrative parties from the offices of the Administration and to communication difficulties, national legislation considers the distance existing between the districts, provinces and departments of the country for the computation of ordinary procedural deadlines, adding to the terms fixed legally or administratively, those deadlines that are assessed in advance so that the administrative party can present itself before the Administration, estimating the existing spatial separation between both places;

That, therefore, it is understood that the application of the figure of the term of distance is intimately related to a physical separation that prevents the administrative party from adequately fulfilling its obligations before the Administration attending the physical separation between both and that the obligation or in the concrete case the documentation to be presented has to be sent physically to the facilities of the Administration;

That, notwithstanding the above, in the present case TEXTIL PIURA has not fulfilled to indicate and even less to substantiate with evidence what was the fact and/or circumstance by which it could not remit the financial information to which it was obligated via the MVNet system, this in consideration that article 12 of the MVNet System Regulation, approved by CONASEV Resolution No. 08-2003-EF/94.10 expressly establishes that the MVNet system constitutes the unique means for sending information to CONASEV; and also that finally TEXTIL PIURA sent its financial information on October 31, 2007 using to such effect the MVNet System and not any physical means that would have allowed evaluating the possibility of application of the term of distance, in attention to the separation between the company's domicile and the CONASEV Document Processing Office;

That, consequently, it does not correspond to apply the term of distance for the evaluation of the failure in reference, understanding the infringement to be configured and the evaluation and sanction imposed by Administrative Tribunal Resolution No. 374-2008-EF/94.01.3 to be correct;

That, consequently, no transgression of the Principles of Motivation and Typicity is evidenced in the present procedure; and

Being in accordance with what is provided by article 11, paragraph t) of the Unified Text of the Organic Law of CONASEV, approved by Decree Law No. 26126 and its modifications, as well as by what was agreed by the CONASEV Board of Directors met in its session of March 14, 2011;

IT IS RESOLVED:

Article 1°.- Declare unfounded the appeal filed by Industrial Textil Piura S.A. against the Resolution of the CONASEV Administrative Tribunal No. 296-2010-EF/94.01.3.

Article 2°.- Leave without effect the sanction imposed by the Resolution of the CONASEV Administrative Tribunal No. 374-2008-EF/94.01.3, for the failure of Industria Textil Piura S.A. regarding the timely presentation of the individual annual audited financial statements corresponding to the 2006 fiscal year.

Article 3°.- Reduce the fine imposed on Industria Textil Piura S.A. to 3.85 UIT equivalent to S/. 13,282.50 (Thirteen Thousand Two Hundred Eighty-two with 50/100 New Soles) for failing to present to CONASEV and to the Lima Stock Exchange, within the legal deadline, the individual interim financial statements and management report as of September 30, 2007.

Article 4°.- Declare the administrative route exhausted.

Article 5°.- Transcribe this resolution to Industria Textil Piura S.A. and to Bolsa de Valores de Lima S.A.

Article 6°.- Order the dissemination of this resolution on the CONASEV Portal.

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Michel Canta Terreros
President

[1] MORÓN URBINA, Juan Carlos. Comments on the General Administrative Procedure Law. Gaceta Jurídica. Lima, 2008. P. 566.
[2] MORÓN URBINA, Juan Carlos. Comments on the General Administrative Procedure Law. . Gaceta Jurídica. Lima, 2008. P. 617 [3] MORÓN URBINA, Juan Carlos. Comments on the General Administrative Procedure Law. GACETA JURÍDICA. Seventh Edition, 2008. P. 853.