PERÚ Ministry of Economy and Finance
SMV
Superintendency of the Market in Securities

“Decade of Equal Opportunities for Women and Men” "Year of the Bicentennial, of the consolidation of our Independence, and of the commemoration of the heroic battles of Junín and Ayacucho"

Deputy Superintendency Resolution SMV

No. 008-2024-SMV/10

Lima, 23 February 2024

Summary: Autoplan Empresa Administradora de Fondos Colectivos S.A. is sanctioned with a reprimand for having incurred in one (1) serious infraction classified in Annex XIII, numeral 2, subparagraph 2.16 of the Sanctions Regulation, for failing to comply with the provisions of the collective funds administration contract entered into with the associate by not having complied with the legal term established to provide a response to the claims filed by the associate.

Administered
: Autoplan Empresa Administradora de Fondos Colectivos S.A.
Subject
:
Administrative sanctioning procedure
File No. : 2023023602

The Deputy Superintendent of Prudential Supervision

VIEWS:

Administrative file No. 2023023602, Report No. 1843-2023-SMV/10.3, issued by the General Intendancy of Prudential Compliance, as well as the defenses submitted by Autoplan Empresa Administradora de Fondos Colectivos S.A.; and,

CONSIDERING:

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

I. Facts

2. On 31 May 2019, Mrs. Tina Alexandra Terry Cabeza (hereinafter, COMPLAINANT) signed with signature and fingerprint the Collective Funds Administration Contract Modality Purchase Certificate of the AUTOPLAN-002 Program, No. 016971 (hereinafter, CONTRACT No. 016971) and the Collective Funds Administration Contract Modality Purchase Certificate of the AUTOPLAN-002 Program, No. 016972 (hereinafter, CONTRACT No. 016972);

3. On 7 September 2019, the COMPLAINANT signed with signature and fingerprint the Collective Funds Administration Contract Modality Purchase Certificate of the AUTOPLAN-002 Program, No. 0018105 (hereinafter, CONTRACT No. 0018105);

4. On 9 September 2019, CONTRACT No. 016971 and CONTRACT No. 016972 were terminated at the request of the complainant to unify her contracts in a third request, according to the information provided by Autoplan Empresa Administradora de Fondos Colectivos S.A. (hereinafter, AUTOPLAN EAFC);

5. On 30 December 2020, CONTRACT No. 0018105 was terminated due to lack of payment, according to the information provided by AUTOPLAN EAFC;

6. On 11 February 2022, the COMPLAINANT, who was an associate of Group No. 19 of the Autoplan-002 Program, filed a complaint before the SMV against AUTOPLAN EAFC1, in which she states that, among others, the administrator did not respond to Letter No. 002-TAVTC dated 29 January 2021, nor to the email of 1 March 2021, with subject “I wish to make an appointment”. With the aforementioned complaint, the COMPLAINANT submitted, among others, the following documents:

a) Copy of the email of 28 January 2021, with subject “Notarial Letter”

b) Copy of Letter No. 002-TAVTC of 29 January 2021 addressed to AUTOPLAN EAFC.

c) Copy of the email of 1 March 2021, with subject “I wish to make an appointment”.

7. By Official Letter No. 678-2022-SMV/10.3 notified on 16 February 2022 (hereinafter, OFFICIAL LETTER), the complaint filed by the COMPLAINANT was brought to the attention of AUTOPLAN EAFC, in order for it to submit the corresponding comments and it was requested the following documentation and/or information;

“(…)

g. Copy of the response provided to the COMPLAINANT by the email sent on 1 March 2021.

h. Copy of the response letter provided to the COMPLAINANT by Letter No. 002-TAVTC of 29 January 2021, in relation to the return of her contributions.

(…)”.

8. In response to the OFFICIAL LETTER, on 9 and 10 March 2022, AUTOPLAN EAFC submitted its comments in relation to the complaint, as well as the following information:

a) Copy of the email of 9 March 2022 under the subject “LETTER NO. 002-TAVTC// REQUEST FOR CONTRIBUTIONS-TINA ALEXANDRA VICTORIA TERRY CABEZA”, sent by AUTOPLAN EAFC to the COMPLAINANT.

b) Copy of the letter of 9 March 2022 under the subject “Return of contributions and contractual termination”, sent by AUTOPLAN EAFC to the COMPLAINANT, with reference to Letter No. 002-TAVTC, of 29 January 2021, and to the Email dated 21 March 2021.

[1] With File No. 2022005648.

9. By Official Letter No. 2396-2023-SMV/10.3 notified on 24 May 2023 (hereinafter, OFFICIAL LETTER OF CHARGES), an administrative sanctioning procedure was initiated against AUTOPLAN EAFC, imputing charges for some facts related to the complaint of the COMPLAINANT. In this sense, on 16 June 2023, the administrator submitted its defenses;

10. By the brief submitted on 19 October 2023, the administrator informs that on 12 October 2023 it entered into an extrajudicial transaction with the COMPLAINANT;

11. The charges formulated against AUTOPLAN EAFC, as well as the defenses, have been subject to evaluation by the General Intendancy of Prudential Compliance in Report No. 1843-2023-SMV/10.3, which has been submitted to the knowledge of this Deputy Superintendency;

12. In compliance with the Principle of Due Process contemplated both in Article IV, paragraph 1, item 1.2 of the Preliminary Title, as well as in Article 248, item 2, of the Single Ordered Text of the General Administrative Procedure Law, Law No. 27444, approved by Supreme Decree No. 004-2019-JUS, published on 25 January 2019 (hereinafter, TUO DE LA LPAG), through Official Letter No. 5875-2023-SMV/10, the administrative file to which this resolution refers was made available to AUTOPLAN EAFC for its review;

II. Issues to be determined

13. In the present administrative proceeding, in the opinion of this Deputy Superintendency of Prudential Supervision, it corresponds to determine the following:

a. Whether or not AUTOPLAN EAFC incurred an infraction set forth in Annex XIII, item 2, subitem 2.16 of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01 (hereinafter, SANCTIONS REGULATION), for not having complied with the legal term established to provide a response to the claims filed by the member.

b. Whether or not it corresponds to impose a sanction on AUTOPLAN EAFC;

III. Analysis

3.1 Applicable regulations

14. Article 68 of the Regulation of the Collective Funds System and its Managing Companies, approved by SMV Resolution No. 020-2014-SMV-01 (hereinafter, REGULATION), provides the following:

"Article 68.- Resolution of claims The Managing Company must have personnel responsible for attending to the claims of the Members, subject to the provisions of the Rules applicable to complaints and claims against entities supervised by the Superintendency of the Securities Market - SMV, approved by SMV Resolution No. 006-2012-SMV-01, or the rule that replaces it."

15. In that sense, Article 3 of the "Rules applicable to complaints and claims against entities supervised by the Superintendency of the Securities Market - SMV" approved by SMV Resolution

No. 006-2012-SMV-01 (hereinafter, RULES APPLICABLE TO COMPLAINTS AND CLAIMS) establishes the procedure for attending to claims:

"Article 3.- Attention of claims by legal entities authorized by the SMV

Without prejudice to compliance with the rules that determine the direct attention of claims that final consumers may file and the obligation to have a Claims Book, within the framework of the provisions of Articles 24 and 150 of the Consumer Protection and Defense Code, Law No. 29571, the legal entities to which the SMV has granted operating authorization are obliged to directly attend to any claim by their clients regarding the services they provide, within a maximum term of thirty (30) calendar days from the date of presentation of the respective claim. Said term may be extended for an equal period when the nature of the claim justifies it, a situation that is brought to the attention of the claimant before the end of the initial term. If the claimant requires it, the response must be made in writing.

(...)." (Underline added)

16. Likewise, clause tenth, item 10.1, literal c) last paragraph of the CONTRACT establishes:

"CLAUSE TENTH: ON THE RIGHTS AND OBLIGATIONS

10.1 RIGHTS OF THE MEMBERS:

(...)

c) (...)

For its part, in the event claims are filed by the Member, these claims will be referred to the corresponding area of Autoplan, which will have a term of thirty (30) calendar days for the resolution of said claim, counted from the receipt thereof. This term may be extended according to its nature. The filing of a claim in accordance with this clause does not constitute a prior route nor does it imply any limitation for the Member to use another dispute resolution mechanism.

(...)". (Underline added)

3.2 Charge

17. Through its complaint, the COMPLAINANT indicates that it requested before AUTOPLAN EAFC the return of its contributions, through Letter No. 002-TAVTC of 29 January 2021 and email of 1 March 2021, in the latter the COMPLAINANT indicates the following: "that I was removed from the autofondos plan in the middle of the pandemic even while paying despite what happened worldwide and even knowing my issue that your worker scammed me";

18. In attention to what was described in the previous recital, through the OFFICIAL LETTER, literals g) and h), AUTOPLAN EAFC was required to send the copy of the response provided to the COMPLAINANT by the email sent on 1 March 2021 and the copy of the response letter provided to the COMPLAINANT by Letter No. 002-TAVTC of 29 January 2021;

19. In this regard, through the brief presented on 9 March 2022, AUTOPLAN EAFC indicates that it complies with what was requested through literals g) and h) of the OFFICIAL LETTER by attaching the copies of the responses provided to the COMPLAINANT as annexes 6 and 7. As annex 6 of the aforementioned brief, there is in File No. 2022005648, the copy of the email under the subject "LETTER NO. 002-TAVTC// REQUEST FOR CONTRIBUTIONS-TINA ALEXANDRA VICTORIA TERRY CABEZA" and the copy of the letter under the subject "Return of contributions and contractual resolution", sent by AUTOPLAN EAFC to the COMPLAINANT;

20. With the letter of 9 March 2022, the managing company informed the COMPLAINANT, among others, the following:

"(...)

TENTH.- Finally, AUTOPLAN has verified that you:

• Took knowledge and gave your conformity through your signature and fingerprint of the reading of the APPLICATION FOR ENTRY TO THE AUTOPLAN PROGRAM - 002,

• Took knowledge and gave your conformity through your signature and fingerprint of the reading of contract No. 016972, 018105, 016971,

• Took knowledge that in case you decide to withdraw from the program or in the case that your contract is RESOLVED the PENALTIES AND DEDUCTIONS will be applied as applicable,

• Took knowledge that the return of contributions (after deduction and penalties) is given through QUARTERLY DRAWS,

• Took note that, according to the provisions of numeral 4 of the IMPORTANT INFORMATION OF THE CONTRACT, no official of AUTOPLAN, under any circumstance, may commit to deliver or award the certificate on a specific date.

THEREFORE, Mr. (Mrs.) TINA ALEXANDRA VICTORIA TERRY CABEZA, the return of contributions is governed by the provisions of numeral 15.2 of the contract, your request for return of contributions has been declared INADMISSIBLE.

(…)”.

21. At this point, it should be noted that, in accordance with applicable regulations, the deadline for resolving claims from members by AUTOPLAN EAFC is thirty (30) calendar days from receipt thereof, and may be extended for an equal period if warranted, with prior communication to the member;

22. In that sense, the claims filed by the COMPLAINANT should have been resolved within thirty (30) days from receipt thereof; however, the COMPLAINANT received a response from AUTOPLAN EAFC regarding its claims after a period that exceeded the established deadline, on 9 March 2022;

23. Considering the foregoing, AUTOPLAN EAFC would not have complied with the provisions of article 68° of the REGULATION, article 3° of the RULES APPLICABLE TO COMPLAINTS AND CLAIMS, and clause 10, numeral 10.1, literal c), last paragraph of the CONTRACT, that is, AUTOPLAN EAFC would not have complied with the legal deadline established to provide a response to the claim filed by the COMPLAINANT;

24. Therefore, it was imputed that AUTOPLAN EAFC would have incurred one (1) infraction classified as serious, according to Annex XIII, numeral 2, subsection 2.16 of the Sanctions Regulation, approved by Resolution SMV No. 035-2018-SMV/01 (hereinafter, SANCTIONS REGULATION), according to which it constitutes an infraction: “Failure to comply with the provisions of the collective funds administration contract entered into with the member”;

3.3 Defenses

25. AUTOPLAN EAFC acknowledges its responsibility for the infraction imputed through the OFFICIAL NOTICE OF CHARGES, expressly, precisely, concisely, clearly, and unconditionally;

26. Likewise, the administering company requests the application of the mitigating circumstances provided in literals a) and b) of article 26 of the SANCTIONS REGULATION2;

27. Regarding the application of additional mitigating circumstances to its responsibility, AUTOPLAN EAFC states the following: “In addition to the aforementioned mitigating circumstance, we respectfully state that, based on the information in the record and that we submitted in due course, we consider that your Superintendency could consider, ex officio, whether we fall under the assumptions established in literal b) of article 26° of the Sanctions Regulation, taking into account all the information presented for the clarification of the infraction; and furthermore, our client proceeded to remedy the conduct in question, consisting of the return of contributions in favor of our member, made on 18 July 2022, by virtue of the out-of-court settlement entered into with the complainant, on the same date”;

3.4 Evaluation of the defenses

28. This analysis must begin by stating that AUTOPLAN EAFC, relying on article 26° of the SANCTIONS REGULATION, has acknowledged its responsibility for the imputed infraction. It should be mentioned that such acknowledgment will be considered at the time of evaluating the sanction to be imposed;

[2] “Article 26.- MITIGATING CIRCUMSTANCES OF LIABILITY FOR INFRACTIONS The following constitute mitigating circumstances of liability for infractions: a) Acknowledgment of responsibility by the offender expressly and in writing, once the administrative sanctioning procedure has begun. When the applicable sanction is a fine, it is reduced, taking into account the following: 1. If the acknowledgment of the infraction is presented within the period granted for the submission of defenses, the reduction amount shall be fifty percent (50%). 2. If the acknowledgment is presented after the expiration of the period granted for the submission of defenses and before the expiration of the period granted to submit arguments to the instruction report, the reduction amount shall be thirty percent (30%). 3. If the acknowledgment is presented after the expiration of the period granted to submit arguments to the instruction report and up to before the issuance of the sanction resolution, the reduction amount shall be ten percent (10%). The acknowledgment of responsibility regarding an infraction must be made precisely, concisely, clearly, expressly, and unconditionally, and must not contain ambiguous or contradictory expressions; otherwise, it shall not be understood as an acknowledgment. If defenses are submitted, despite having made an acknowledgment of responsibility, it shall be understood as a non-acknowledgment, and the authority shall 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 beginning of the administrative sanctioning procedure.”

29. However, it is necessary to point out that AUTOPLAN EAFC is a company supervised by the SMV, with operating authorization granted by Superintendency Resolution No. 024-2015-SMV/02 of 17 February 2015, and is aware of the regulations under which the collective funds system operates, as well as the rights and obligations established in the contracts it administers and of the RULES APPLICABLE TO COMPLAINTS AND CLAIMS, for which it has the obligation to act diligently as a collective funds administering company; however, this did not occur, incurring in the commission of the imputed infraction;

30. In relation to this case, it has been established in the record that, between the maximum date established for this purpose, that is, 28 February 2021 and 9 March 20223, 374 days elapsed for the COMPLAINANT to receive a response from AUTOPLAN EAFC regarding its claim contained in Letter No. 002-TAVTC of 29 January 2021. Likewise, it has been established that, between 31 March 2021 and 9 March 20224, 343 days elapsed for the COMPLAINANT to receive a response from AUTOPLAN EAFC to the email of 1 March 2021;

31. It should be noted that AUTOPLAN EAFC's obligation to respond to a claim from its members expires after 30 calendar days. Therefore, the deadlines to respond to the claims submitted by the COMPLAINANT by means of its letter and email expired on 28 February 2021 and 31 March 2021, respectively;

32. In this regard, it is noted that AUTOPLAN EAFC contravened the provisions of article 68 of the REGLAMENTO, article 3 of the NORMAS APLICABLES A DENUNCIAS Y RECLAMOS and clause 10, numeral 10.1, literal c), last paragraph of the contracts entered into, since it did not comply with the legal deadline established to provide a response to the claim filed by the COMPLAINANT;

33. Consequently, AUTOPLAN EAFC incurred one (1) infraction classified as serious according to Annex XIII, numeral 2, item 2.16 of the REGLAMENTO DE SANCIONES, according to which the following constitutes an infraction: “Failure to comply with the provisions of the collective fund administration contract entered into with the member”;

IV. Evaluation of the sanction

[3] It should be noted that AUTOPLAN EAFC's obligation to respond to the claim contained in Letter No. 002-TAVTC submitted by the COMPLAINANT expired 30 days after 29 January 2021, that is, on 28 February 2021.

[4] It should be noted that AUTOPLAN EAFC's obligation to respond to the claim contained in the email submitted by the COMPLAINANT expired 30 days after 1 March 2021, that is, on 31 March 2021.

34. In accordance with article 7 of Decreto Ley No. 21907 on Empresas de Fondos Colectivos and article 25 of the REGLAMENTO DE SANCIONES; in accordance with article 248, numeral 35 of the TUO DE LA LPAG, and article 2576 of the aforementioned normative body; the administrative sanctions to be imposed must take into account the criteria set forth by Decreto Ley No. 21907, the REGLAMENTO DE SANCIONES and the TUO DE LA LPAG;

35. Within that framework, the evaluation of the sanction must consider: a) Prior record of the offender; b) Recidivism; c) Circumstances of the commission of the infraction; d) Economic harm caused and its impact on the market; e) Unlawful benefit resulting from the commission of the infraction; f) Probability of detection of the infraction; g) Seriousness of the harm to the public interest and/or protected legal interest; h) Whether or not there was intent in the offender's conduct;

36. In this sense, in order to reconcile the criteria of the TUO DE LA LPAG with those indicated in Decreto Ley No. 21907 and in the REGLAMENTO DE SANCIONES, and so that these criteria are adequately considered so that their assessment observes the principle of reasonableness and the sanction to be imposed is adjusted to them, the following criteria are analyzed;

37. Regarding the prior record, in accordance with the provisions of article 25, literal a) of the REGLAMENTO DE SANCIONES, final sanctions imposed by the SMV within the period of four (4) years prior to the commission of the infraction to be sanctioned constitute prior record. The aforementioned article specifies that the commission of the same infraction in the year prior to the infraction to be sanctioned is not considered prior record;

[5] “Article 248.- Principles of administrative sanctioning power The sanctioning power of all entities is additionally governed by the following special principles: (…) 3. Reasonableness.- The authorities must foresee that the commission of the sanctionable conduct is not more advantageous for the offender than complying with the infringed rules or assuming the sanction. However, the sanctions to be applied must be proportional to the non-compliance classified as an infraction, observing the following criteria indicated for their gradation: a) The unlawful benefit resulting from the commission of the infraction; b) The probability of detection of the infraction; c) The seriousness of the harm to the public interest and/or protected legal interest; d) The economic harm caused; e) Recidivism, for the commission of the same infraction within the period of one (1) year from the date on which the resolution that sanctioned the first infraction became final. f) The circumstances of the commission of the infraction; and g) The existence or not of intent in the offender's conduct”.

[6] “Article 257°.- Exemptions and mitigating circumstances of liability for infractions 1.- The following constitute conditions exempting from liability for infractions: a) Duly proven fortuitous event or force majeure. 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 it affects the aptitude to understand the infraction. d) The mandatory order of a competent authority, issued in the exercise of its functions. e) The error induced by the Administration or by a confusing or illegal administrative provision. f) The voluntary correction by the possible sanctioned party of the act or omission imputed as constituting an administrative infraction, prior to the notification of the imputation of charges referred to in subsection 3) of article 255. 2.- The following constitute conditions mitigating liability for infractions: a) If, once an administrative sanctioning procedure has been initiated, the offender expressly and in writing acknowledges their responsibility. In cases where the applicable sanction is a fine, it is reduced to an amount not less than half of its amount. b) Others established by special norm”.

38. In this regard, from the review carried out in said period, it has been verified that AUTOPLAN EAFC records the following final sanctions:

No.	Resolution	Resolved	Finality
i	Resolution of the Deputy Superintendence SMV No. 112-2017-SMV/107	AUTOPLAN EAFC is sanctioned with a fine of two (02) UIT, for having incurred one (01) infraction of a serious nature typified in Annex XIX, numeral 2, subsection 2.12 of the Sanctions Regulation approved by CONASEV Resolution No. 055-2001-EF/94.10 and its amending norms (hereinafter OLD SANCTIONS REGULATION), for not having complied with submitting the First Semiannual Report of the Compliance Officer for the 2015 fiscal year, within the term established in the Norms for the Prevention of Money Laundering and Financing of Terrorism.	12/12/2017
ii	Resolution of the Deputy Superintendence SMV No. 011-2019-SMV/108	AUTOPLAN EAFC is sanctioned with two (02) warnings for having incurred two (02) infractions of a serious nature typified in Annex XIV, numeral 2, subsection 2.21 and Annex XIV, numeral 2, subsection 2.41 of the OLD SANCTIONS REGULATION, for not having adequately determined the order of preference of the substitute awardees.	11/04/2019
iii	Resolution of the Deputy Superintendence SMV No. 004-2020-SMV/109	AUTOPLAN EAFC is sanctioned with a fine of three (03) UIT for having incurred two infractions: one (01) of a serious nature typified in Annex XIV, numeral 2, subsection 2.22 of the OLD SANCTIONS REGULATION, for not complying with the conditions established in the regulations for the convening or holding of assemblies; and, one (01) of a minor nature typified in Annex XIV, numeral 3, subsection 3.13 of the OLD SANCTIONS REGULATION, for not timely sending to the member the information on the assembly calendar. By RSUP No. 119-2020-SMV/02, the appeal filed by AUTOPLAN EAFC was declared partially founded and consequently the sanction imposed as a fine in article 3° of the Resolution of the Deputy Superintendence SMV No. 004-2020-SMV/10 was modified, reducing it from three (3) UIT to two (2) UIT, in force at the time of effective payment of the fine; and, revoking the corrective measure provided in article 4° of the aforementioned Resolution of the Deputy Superintendence.	1/12/2020
iv	Resolution of the Deputy Superintendence SMV No. 013-2021-SMV/1010	AUTOPLAN EAFC is sanctioned with three (03) warnings and a fine of 28.0045 UIT for having incurred twenty (20) infractions of a minor nature typified in Annex XIV, numeral 3, subsection 3.1 of the OLD SANCTIONS REGULATION and in two (02) infractions of a minor nature typified in Annex I, numeral 3, subsection 3.1, of the SANCTIONS REGULATION, for not having complied with submitting periodic information within the term established by the applicable regulations referred to interim financial information and management report.	21/04/2021

39. With regard to recidivism for the commission of the same infraction, the final sanction imposed by the SMV within the term 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 AUTOPLAN EAFC does not present sanctions within the

[7] Notified on 17 November 2017.

[8] Notified on 21 March 2019.

[9] The resolution was subject to appeal by AUTOPLAN EAFC. Subsequently, by Superintendent Resolution No. 119-2020-SMV/02 the appeal was declared partially founded.

[10] Notified on 26 March 2021.

term indicated above, for the commission of the same infraction subject to analysis, in the present administrative sanctioning procedure, so recidivism is not configured;

40. With regard to the circumstances of the commission of the infractions, it must be mentioned that AUTOPLAN EAFC, in its capacity as a company supervised by the SMV, is aware of the norms that regulate the collective funds system and in that sense, of the norms related to the rights of the members, as well as the norms referred to the attention of claims submitted by its members. However, with regard to the contract signed by the COMPLAINANT, the administering company breached the aforementioned norms, which was evidenced from the complaint against AUTOPLAN EAFC submitted by the COMPLAINANT to the SMV;

41. In the present procedure, it has been accredited that AUTOPLAN EAFC did not comply with responding to the claims submitted by the COMPLAINANT within the term established in the regulations. In this regard, it was verified that 343 and 374 days elapsed for the COMPLAINANT to receive a response from AUTOPLAN EAFC, in relation to their claims contained in the letter of 29 January 2021 and in the email of 1 March 2021, respectively, claims by which the COMPLAINANT requested the return of all their payments under the collective fund administration contracts signed, which amounted to the sum of US$ 5,346.98 (Five thousand three hundred forty-six and 98/100 US dollars), according to the complaint;

42. Through the extrajudicial transaction of 12 October 2023, signed by the representatives of AUTOPLAN EAFC and the COMPLAINANT, it was agreed that AUTOPLAN EAFC would recognize in favor of the COMPLAINANT the sum of US$7,200.00 (Seven thousand two hundred and 04/100 US dollars); from which it follows that the sum delivered according to the terms of the extrajudicial transaction exceeds that sum requested by the COMPLAINANT in their complaint;

43. In the present case, it must be considered that the resolution of CONTRACT No. 0018105 occurred due to the non-payment of three (3) or more total monthly installments by the COMPLAINANT, in accordance with the provisions of clause eleventh, numeral 11.3, of CONTRACT No. 0018105, and article 99 of the REGULATION11;

44. According to the REGULATION and the signed contract, the return of contributions to associates with resolved contracts is made through quarterly draws or, if not benefiting in the draws, within sixty (60) days following the end of the term of validity of the group. It is worth mentioning

[11] In this regard, it should be noted that clause eleventh, numeral 11.3, of CONTRACT No. 0018105, and article 99 of the REGULATION, establish the following: “11.3 The non-awarded Associate who incurs in the non-payment of three (3) consecutive Total Monthly Installments, will incur in a cause for contractual resolution, and AUTOPLAN may resolve the contract by operation of law, with the sending of a communication to the breaching party indicating its decision to resolve the Contract being sufficient.” “Article 99.- Contract Resolution The Administrator must unilaterally resolve the Contract when the Associate has failed to pay three (03) consecutive Total Installments. When the Contract corresponds to an Associate with goods delivered and/or service provided, the Administrator may consider the agreed terms expired and demand payment of the Total Installments accrued and to be accrued until the end of the contract, as well as execute the guarantees unless a default insurance has been contracted and it covers the total amount owed”.

that Group No. 19 of the AUTOPLAN-002 Program will end on 31 May 202412, in accordance with the provisions of the contracts signed by the COMPLAINANT;

45. It should be reiterated that AUTOPLAN EAFC, in the development of its activities, is obliged to comply with its conduct rules in accordance with the provisions of article 48 of the REGULATION, among them complying with the “Priority of interests”, which means that at all times it must privilege the interests of the collective funds it administers and of its associates over its own interests, act with “Care and diligence” in the best interest of the Collective Fund and its Associates, avoiding acts that may deteriorate their trust, as well as the “Observance” in compliance with the rules that regulate the exercise of its activities and its own internal procedures established in the corresponding manuals. In this regard, the administering company must implement the necessary procedures and controls for its proper observance;

46. Likewise, AUTOPLAN EAFC has the obligation to comply with the contract signed with its associates, which establishes the rights and obligations of the associates and the administering company and whose model is authorized by the SMV, at the request of the administering company;

47. Regarding the economic harm caused and the repercussion in the market, in the present case, it has not been evidenced that the infraction incurred by AUTOPLAN EAFC has produced a concrete quantifiable harm in the market; however, these facts affect the trust of associates or potential associates in the collective funds system;

48. Regarding the illicit benefit resulting from the commission of the infraction, it must be noted that it has not been proven that AUTOPLAN EAFC has obtained a benefit that has a direct relationship with the infraction subject to analysis in the present administrative procedure;

49. Regarding the probability of detection of the infraction, it must be indicated that the facts constituting the infraction committed by AUTOPLAN EAFC were evidenced when verifying compliance with the regulations applicable to the development of its functions, based on the facts exposed by the COMPLAINANT in the complaint filed against the administering company, so the probability of detection of the infraction was low;

50. As for the severity of the damage to the public interest and/or protected legal right, it has not been possible to prove that the action of AUTOPLAN EAFC in the commission of the infraction subject to analysis in the present sanctioning procedure has caused determinable damage to the public interest;

51. However, it must be noted that according to the applicable regulations, the administering companies must have personnel responsible for attending to the claims of the associates, whose maximum attention period is 30 calendar days from the date of presentation of the respective claim. Additionally, they have the obligation to comply with the contract signed with their associates, which establishes the rights and obligations of the associates and the company

[12] In accordance with article 123 of the REGLAMENTO, a group shall be considered terminated when the term of duration of the group established in the contract has expired. In accordance with the characteristics of the AUTOPLAN-002 Program, the term of duration of the groups that make up the program is sixty (60) months. Therefore, the term of duration of Group No. 19 will end on 31 May 2024, considering that CONTRACT No. 016971 and CONTRACT No. 016971 were signed on 31 May 2019.

administrator and whose model is authorized by the SMV, at the request of the administering company;

52. Thus, taking into account that collective fund administering companies have the obligation to act in strict compliance with the regulations applicable to them, such as the provisions established in the CONTRACT, the REGLAMENTO and the NORMAS APLICABLES A DENUNCIAS Y RECLAMOS, in protection of the collective fund system, the transgression of said regulations affects the legal interest related to the integrity of the market, that is, of the collective fund system and especially affects the trust of the associates or potential associates in the collective fund system;

53. With regard to the existence or not of intent in the conduct of the infringer, it must be specified that no intent has been verified in the conduct of AUTOPLAN EAFC regarding the infringement under analysis;

54. In addition to the foregoing, it is appropriate to analyze the exculpatory and mitigating grounds for liability established in article 257 of the TUO DE LA LPAG, as well as the mitigating and exculpatory conditions of liability established in articles 26 and 27 of the REGLAMENTO DE SANCIONES;

55. With regard to the voluntary declaration of the commission of the infringement, the contribution of the infringer to its clarification and the correction made after its requirement, established in article 257, numeral 2, subparagraph a) of the TUO DE LA LPAG and in article 26, literals a), b) and c) of the REGLAMENTO DE SANCIONES, it must be noted that AUTOPLAN EAFC acknowledged its responsibility for the infringement incurred expressly and in writing, in a precise, concise, clear, and unconditional manner, without ambiguous or contradictory expressions, and has not hindered their clarification. Likewise, it is observed that the claims submitted by the complainant were addressed after the transfer of the complaint to the administrator and prior to the initiation of this administrative sanctioning procedure;

56. On the other hand, in accordance with the provisions of article 257, numeral 1 of the TUO DE LA LPAG and article 27 of the REGLAMENTO DE SANCIONES, it is not observed that in the present case any of the assumptions that constitute exculpatory conditions of liability has been configured;

57. From the foregoing, it is concluded that AUTOPLAN EAFC has incurred in the commission of an infringement classified as serious in Annex XIII, numeral 2, subparagraph 2.16 of the REGLAMENTO DE SANCIONES, for which it corresponds to impose on AUTOPLAN EAFC a sanction corresponding to infringements classified as serious in accordance with article 38 of the REGLAMENTO DE SANCIONES;

58. However, taking into account the sanction criteria analyzed, and in application of the Principle of Reasonableness contemplated in article 248, numeral 3 of the TUO DE LA LPAG, which states that the sanctions to be applied must be proportional to the non-compliance classified as an infringement, it must be considered that with respect to the infringement subject to charges, it has not been evidenced that it has had an impact on the market, nor has it been established that the administering company has had intent in its actions in this regard, and that AUTOPLAN EAFC is not a repeat offender with respect to the infringement; likewise, it must be taken into account that the claims filed by the complainant were answered and AUTOPLAN EAFC delivered in favor of the COMPLAINANT the sum of US$7,200.00 (Seven thousand two hundred and 04/100 US dollars), which includes the return to the COMPLAINANT of the contributions corresponding to the collective fund administration contracts signed without the application of penalties, a return that was made before 31 May 2024, the end date of Group No. 19; therefore, this Deputy Superintendency considers that it corresponds to impose on AUTOPLAN EAFC a sanction applicable to minor infringements, in accordance with the provisions of article 39 of the REGLAMENTO DE SANCIONES;

In accordance with the provisions of article 32, numeral 16, of the Regulations on Organization and Functions of the SMV, approved by Supreme Decree No. 216-2011-EF and its amendments.

RESOLVES:

Article 1.- To declare that Autoplan Empresa Administradora de Fondos Colectivos S.A has incurred in one (1) infringement classified as serious as established in Annex XIII, numeral 2, subparagraph 2.16 of the Reglamento de Sanciones, approved by SMV Resolution No. 035-2018-SMV/01, for having failed to comply with the legal term established to provide a response to the claims filed by the associate.

Article 2.- To sanction Autoplan Empresa Administradora de Fondos Colectivos S.A with a reprimand for the commission of the infringement indicated in the previous article.

Article 3.- This resolution does not exhaust the administrative route, unless it is consented to, and may be challenged before the Deputy Superintendency of Prudential Supervision by filing a motion for reconsideration or appeal before the same, within a period of fifteen (15) business days counted from the day following its notification.

Article 4.- In the event that this resolution is not challenged by means of a reconsideration or appeal within fifteen (15) business days of its notification and becomes final, it must be published on the SMV Institutional Page on the Single Digital Platform of the Peruvian State (www.gob.pe/smv), in compliance with the provisions of numeral 1, article 7 of the Policy on the dissemination of regulatory projects, general legal norms, early agenda and other administrative acts of the SMV, approved by SMV Resolution No. 014-2014-SMV/01 and its amendment, and by the provisions of article 14 of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01.

Article 5.- Transcribe this resolution to Autoplan Empresa Administradora de Fondos Colectivos S.A.

Register, communicate and publish.

Omar Gutiérrez Ochoa
Deputy Superintendent
Deputy Superintendency of Prudential Supervision