PERU 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. 026-2024-SMV/10

Lima, 13 May 2024

Summary: Grupo Coril Sociedad Agente de Bolsa S.A. is sanctioned with a fine of 1,428 UIT, equivalent to S/ 6,283.20 (Six thousand two hundred eighty-three and 20/100 Soles) for having incurred one (1) minor infraction classified in Annex I, numeral 3, subparagraph 3.1 of the SANCTIONS REGULATION, for failing to submit the individual financial statements corresponding to the close of February 2021, within the term established in the applicable regulations.

Administrated party
:
Grupo Coril Sociedad Agente de Bolsa S.A.
Subject
:
Administrative sanctioning procedure
File No.:
2023040643

The Deputy Superintendent of Prudential Supervision

VIEWS:

Administrative file No. 2023040643, and Report No. 262-2024-SMV/10.3, issued by the General Intendancy of Prudential Compliance; as well as the defenses submitted by Grupo Coril Sociedad Agente de Bolsa 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), so that any reference to CONASEV in legal norms shall be understood as made to the SMV;

I. FACTS

2. Within the supervision functions assigned to the SMV, an evaluation was made of the timely compliance in the submission of periodic information by Grupo Coril Sociedad Agente de Bolsa S.A. (hereinafter, CORIL SAB);

3. As a result of said evaluation and under the provisions of the Single Ordered Text of the General Administrative Procedure Law, Law No. 27444, approved by Supreme Decree No. 004-2019-JUS (hereinafter, TUO DE LA LPAG), by means of Official Letter No. 4408-2023-SMV/10.3, notified on 26 September 2023 (hereinafter, OFFICIAL LETTER OF CHARGES), a charge was formulated against CORIL SAB for infringement of the Regulation of Intermediation Agents, approved by SMV Resolution No. 034-2015-SMV-01 (hereinafter, RAI) and the "Norms on preparation and presentation of financial statements and annual report by entities supervised by the Superintendency of the Securities Market", approved by SMV Resolution No. 016-2015-SMV/01 (hereinafter, NORMS), in force at the time of the events, for failing to timely submit the individual financial statements corresponding to the close of February 2021, which were submitted via regularization1 on 15 April 20212. It should be noted that the deadline for the submission of this information was 30 March 2021, the day on which the financial information was approved by the Board of Directors of CORIL SAB;

4. The aforementioned non-compliance is classified in Annex I, numeral 3, subparagraph 3.1 of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01 (hereinafter, SANCTIONS REGULATION), which prescribes as a minor infraction: "Submit outside the established term, or 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 Exchange, to the entity in charge of the centralized negotiation mechanism or to any other entity or subject of the securities market, the audited individual or consolidated financial information, the individual or consolidated interim financial statements, management report, special audit report, material events and annual reports";

5. By writing received on 5 October 2023, CORIL SAB submitted the defenses to the observation made;

6. The charge formulated, as well as the defenses submitted by CORIL SAB have been subject to evaluation by the General Intendancy of Prudential Compliance in Report No. 262-2024-SMV/10.3, which has been submitted to the knowledge of this Deputy Superintendency;

7. In observance of the Principle of Due Process contemplated both in article IV, subparagraph 1, numeral 1.2 of the Preliminary Title, as well as in article 248, numeral 2, of the TUO DE LA LPAG, by means of Official Letter No. 847-2024-SMV/10, the administrative file to which this resolution refers was made available to CORIL SAB for its review;

II. ISSUES TO BE DETERMINED

8. In the present administrative procedure, in the opinion of this Deputy Superintendency, it corresponds to determine the following:

a. Whether CORIL SAB incurred or not in infraction by failing to submit the individual financial statements corresponding to the close of February 2021, within the term established in article 95 of the RAI, in force at the date of the events;

[1] According to CORIL SAB, in its writing dated 15 April 2021, on that date it re-reported its individual financial statements corresponding to the close of February 2021, after making the corrections indicated by IGSE through Official Letter No. 1386-2021-SMV/10.2.

[2] File No. 2021012107.

b. Whether or not it corresponds to impose a sanction on CORIL SAB;

III. ANALYSIS

3.1 Of the applicable regulations

9. Article 95 of the RAI establishes that: "Article 95.- Obligations Agents must submit to the SMV their financial statements and Complementary Information corresponding to each month-end, within the following thirty (30) calendar days. (...)";

10. Article 5 of the “NORMS, in force at the time the events occurred, states the following “Article 5.- Deadlines for submitting individual or separate and consolidated interim financial statements. Issuing companies with securities registered in the RPMV, legal entities registered in the RPMV and collective fund management companies must submit the individual or separate interim and consolidated interim financial statements, as applicable, to the SMV and, if applicable, to the entities responsible for conducting the centralized negotiation mechanisms, on the day they have been approved by the corresponding body. (…)”

3.2. Of the charges filed

11. By means of the OFFICIAL LETTER OF CHARGES, charges were filed against CORIL SAB for not communicating, within the period established by the regulations, the individual financial statements corresponding to the close of the month of February 2021;

3.3. Of the defenses submitted

12. In response to the charges filed, by brief submitted on 5 October 2023, CORIL SAB states that it expressly acknowledges its responsibility for the imputation in the OFFICIAL LETTER OF CHARGES, in writing and within the period granted for the submission of its defenses, in accordance with the provisions of numeral 1, literal a) of article 26 of the SANCTIONS REGULATION; it adds that the acknowledgment of the infraction is made in a precise, concise, clear, express and unconditional manner;

13. CORIL SAB states that it has generated corrective actions seeking to avoid recurrence of the charge imputed in the OFFICIAL LETTER OF CHARGES, and that are the subject of this proceeding, among which is the contractual termination of the accounting area personnel who were in charge of sending information at that time. Likewise, the stock brokerage firm states that although it ratifies expressly acknowledging the commission of the infraction, it proceeds to state its position regarding the considerations for the criteria for grading the sanction, so that these are taken into account, as well as the corrective measures;

14. Regarding the background, CORIL SAB states that it does not have final sanctions imposed by the SMV within the four-year period prior to the commission of the infraction described in the OFFICIAL LETTER OF CHARGES; that it is not a repeat offender in the commission of the infraction, nor has it obtained any illicit benefit; and the probability of detection of this case by the SMV has been very high, given that it can be easily evidenced as a result of the information sent monthly by the regulated entity;

15. As for the circumstance of commission of the infraction, CORIL SAB states that the facts that caused the commission of the infraction described in the OFFICIAL LETTER OF CHARGES -and that have been acknowledged- are extraordinary. In this regard, it specifies that the monthly individual interim information corresponding to February 2021 was sent outside the period established by the applicable regulations due to an error in the internal papers and worksheets, there being no intentionality on its part to carry out a breach of the applicable regulations, nor did it seek to obtain an illicit benefit, so much so that the imputations against it arise from facts under particular circumstances. Additionally, it states that we are not facing visibly willful facts or facts focused on obtaining an advantage at the expense of the investor or the market;

16. Regarding the economic harm caused and its impact on the market, CORIL SAB maintains that the commission of the infraction described in the OFFICIAL LETTER OF CHARGES has not generated any harm or impact on the market, nor has any complaint, claim or demand from any client been evidenced or reported. It adds that the result of the monthly individual interim information for February 2021 reported to the SMV has not been affected or modified;

17. Regarding the seriousness of the harm to the public interest and/or protected legal interest, the stock brokerage firm indicates that there has been no harm to the rights of clients, the general public and/or any protected legal interest as a consequence of the infraction described in the OFFICIAL LETTER OF CHARGES. It adds that as long as there is no evidence and/or indications that give rise to presume the existence of harm to the public interest and/or protected legal interest, it is appropriate to assume that none has existed, and the eventual sanction should be adjusted considering this;

18. Regarding the existence or not of intentionality in the conduct of the offender, CORIL SAB states that it seeks at all times compliance with the sector regulation of the securities market and that the financial information complies with the rules on preparation and presentation of financial statements and annual report, as part of the entities supervised by the SMV. In that line, it states that there was no intention to obtain any undue benefit or advantage by committing the infraction described in the OFFICIAL LETTER OF CHARGES;

3.4 Evaluation of the defenses

19. This analysis must begin by stating that CORIL SAB has expressly acknowledged its responsibility in the commission of the infraction imputed in the OFFICIAL LETTER OF CHARGES. In this regard, it must be indicated that said acknowledgment will be considered when determining the sanction to be imposed;

20. Without prejudice to the foregoing, it is necessary to indicate that CORIL SAB is a company supervised by the SMV, with authorization to operate granted by Resolution CONASEV No. 847-97-EF/94.10 of 26 December 1997, and it is aware of the applicable regulations for the submission of periodic information, and therefore has the obligation to act diligently in the communication of said information. However, this did not occur, given that said lack of diligence led CORIL SAB to incur one (1) infraction, the subject of this administrative sanctioning proceeding;

21. Indeed, in this case, it is verified that CORIL SAB submitted the individual financial statements corresponding to the close of February 2021 outside the period established in article 95 of the RAI. Said financial information should have been submitted, at the latest, on 30 March 2021; however, it was submitted via regularization on 15 April 20213, that is, sixteen (16) days late;

22. On the other hand, it should be noted that the evaluation of what was mentioned by CORIL SAB in relation to the sanction criteria established in article 25 of the SANCTIONS REGULATIONS will be considered at the time of evaluating the sanction to be imposed;

23. Based on the foregoing, it is concluded that CORIL SAB has not disproved the charge imputed;

24. Consequently, it is noted that CORIL SAB has incurred one (1) infraction classified as minor, typified in Annex I, numeral 3, subparagraph 3.1, of the SANCTIONS REGULATIONS according to which the following constitutes an infraction: “Submit outside the established period, or 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 Exchange, to the entity in charge of the centralized negotiation mechanism or to any other entity or subject of the securities market, the audited individual or consolidated financial information, the individual or consolidated interim financial statements, management report, special audit report, material events and annual reports”;

IV. EVALUATION OF THE SANCTION

25. In accordance with the provisions of article 35 of the SANCTIONS REGULATIONS, the commission of an infraction of a minor nature is subject to a sanction corresponding to a warning or a fine of no less than one (1) and up to twenty-five (25) Tax Units (UIT);

26. In this regard, the SANCTION CRITERIA must be taken into account, in whose subparagraph 1 it establishes that the purpose of said criteria is “to establish the sanction parameters that within the framework of the General Administrative Procedure Law, the Securities Market Law and the Decree Law on Collective Fund Management Companies allow sanctions to be applied to issuers with securities registered in the Public Registry of the Securities Market, legal persons registered in the Registries under the charge of the SMV, and other persons obligated to submit periodic or occasional information for non-compliances in the timely remission of said information that are typified as minor infractions in the annexes of the Sanctions Regulations, approved by CONASEV Resolution No. 055-2001-EF-94.10. The criteria developed below apply exclusively to non-compliances with the rules regulating the remission of periodic or occasional information and do not apply extensively to the other cases investigated by this Superintendency”;

[3] File No. 2021012107.

27. Therefore, to evaluate the sanction that must be imposed on CORIL SAB for the non-compliance with the deadline for submitting periodic information described, the SANCTION CRITERIA must be applied;

28. Likewise, it should be mentioned that the application of said criteria observes the Principle of Proportionality established in the TUO OF THE LPAG, since it allows determining in a predictable manner for the administered, the sanctions to be imposed on securities issuers, on persons registered in the RPMV for non-compliances in the deadlines for remission of information to which they are obligated by the rules and for omission in the remission of that information required by the SMV;

29. In order to determine the sanction corresponding to the infraction under analysis, and in accordance with the provisions of subparagraph 3.2 of the SANCTION CRITERIA, the evaluation criteria set forth in article 344 of the Single Ordered Text of the Securities Market Law, approved by Supreme Decree No. 020-2023-EF, in article 248, numeral 3, of the TUO OF THE LPAG4, in article 25 of the SANCTIONS REGULATIONS, as well as in subparagraph 4.1 of the SANCTION CRITERIA, whose observance is mandatory, must be taken into account. Within this framework, the evaluation of the sanction must consider: a) The seriousness of the damage to the public interest and/or protected legal interest; b) The economic harm caused and the repercussion on the market; c) Sanction antecedents; d) Recidivism5; e) The circumstances of the commission of the infraction; e) The illicit benefit resulting from the commission of the infraction; g) The existence or not of intentionality in the conduct of the offender; and, h) The probability of detection of the infraction;

30. Regarding the seriousness of the damage to the public interest and/or protected legal interest, it must be taken into consideration that in the case of the remission of periodic or occasional information, any non-compliance with the regulations on its timely submission, that is, the non-observance of the deadlines established to submit said information, affects the transparency of the securities market, since this safeguards the right of investors (actual as well as potential) and the general public to access said information in a timely manner in order to adopt investment decisions or carry out a certain evaluation; likewise, it affects the SMV in the implementation of its supervision and control activities that seek to protect the integrity of the market;

31. Therefore, it can be stated that CORIL SAB has affected the protected legal interest that is market transparency, given that it submitted late the individual financial statements corresponding to the close of February 2021;

32. With regard to the economic harm caused and the impact on the market, it has not been evidenced that the infringement incurred by CORIL SAB has produced a specific quantifiable harm in the market, that is, it has not been determined that one or more investors have been specifically affected or caused economic damage, and therefore it has also not been evidenced that there has been an impact on the market;

[4] Article 230, numeral 3 of Law No. 27444, General Administrative Procedure Law (hereinafter, LPAG).

[5] The sanction criteria referring to Recidivism and the Probability of detection of the infringement were introduced by Article 2 of Legislative Decree No. 1272, which modified, among others, Article 230; numeral 3 of the LPAG.

33. Likewise, regarding the sanction antecedents, it must be noted that in accordance with the SANCTION CRITERIA and with Article 25, literal a) of the SANCTIONS REGULATIONS, final sanctions imposed by the SMV within the term of four (4) years prior to the commission of the infractions to be sanctioned constitute antecedents;

34. In this regard, from the review carried out in said period, in relation to the charges under evaluation, it has been verified that CORIL SAB records as sanction antecedents the Deputy Superintendent Resolution SMV No. 088-2017-SMV/106, by means of which the intermediary was sanctioned with three (03) warnings for having incurred in three (03) infractions of a minor nature typified in Annex X, numeral 3, subsection 3.14 of the Sanctions Regulations, approved by CONASEV Resolution No. 055-2001-EF/94.10 and its amendments, for failing to communicate three (03) relevant facts within the term established in the applicable regulations, referring to the cessation of duties of attorneys and legal advisor. Said resolution became final on 11 October 2017;

35. With regard to recidivism for the commission of the same infringement, the final sanction imposed by the SMV within the term of one (1) year prior to the commission of the infringement to be sanctioned is taken into account. Within this framework, it must be stated that CORIL SAB does not present sanctions within the aforementioned term, for the commission of the same infringement under analysis in this administrative sanctioning procedure, and therefore recidivism is not configured;

36. As for the circumstances of the commission of the infractions, it must be mentioned that CORIL SAB, in its capacity as a company supervised by the SMV, knows the rules that regulate the securities market, and, in that sense, the rules that oblige it to submit periodic information to the SMV within the terms established therein. However, CORIL SAB submitted late the individual financial statements corresponding to the close of February 2021, subject to evaluation in this sanctioning procedure, sixteen (16) days after the deadline for submission;

37. Regarding the illicit benefit resulting from the commission of the infractions, it must be noted that it has not been proven that CORIL SAB has obtained a benefit directly related to the infringement under analysis in this administrative sanctioning procedure;

38. With respect to the existence or not of intentionality in the conduct of the offender, it has not been evidenced that CORIL SAB acted with intentionality in the commission of the infringement;

39. With regard to the probability of detection of the infractions, it must be indicated that in the present case the infringement incurred by CORIL SAB was evidenced as a result of the supervision and control activities carried out by the SMV regarding compliance with the timely submission of periodic and occasional information, in accordance with the provisions of the applicable regulations; therefore, the probability of detection was high;

40. Continuing with the analysis, it is appropriate to determine the sanction to be imposed on CORIL SAB. In that sense, the SANCTION CRITERIA

[6] Notified on 19 September 2019.

establish that a warning sanction may be imposed when the following guidelines set forth in subsection 4.2, numeral (ii) of said criteria are concurrently met: (i) the impact on market transparency is minimal; (ii) the infringement committed has not caused specific harm to investors or associates; (iii) the offender has no antecedents or, if any, they are infractions typified as minor offenses imposed within the four (4) years prior to the commission of the infringement under evaluation; (iv) the offender has not obtained a benefit from its illegal conduct; and, (v) it has not been proven that the offender acted with intent in the commission of the infringement;

41. Likewise, said SANCTION CRITERIA establish that if a warning sanction is not applicable, a fine sanction must be imposed;

42. On this matter, regarding the impact on market transparency being minimal, it must be noted in principle and as mentioned in the evaluation of the sanction criteria, that any non-compliance with the regulations regarding the terms established for submitting periodic or occasional information affects the transparency of the securities market, especially if this non-compliance is prolonged over time; since such information is relevant not only for the investors and shareholders of the fund management company, but for the market in general. From the foregoing it follows that it is the obligation of every stock brokerage firm to submit the periodic and occasional information required by the regulations within the established terms, that is, in a timely manner;

43. From this perspective, it should be noted that CORIL SAB submitted the individual financial statements corresponding to the close of February 2021 sixteen (16) days after the submission deadline, which is relevant because the greater the number of days in which the administered entity remains in non-compliance with the regulations, the greater the proportion of impact on market transparency, which is why it is reasonable and proportionate to conclude that the impact on market transparency has not been minimal. In this regard, it must be considered that for each day that such information is not submitted, the risk of impact and the expectation of potential interested investors increases, as well as that of investors to inform themselves regarding the stock brokerage firm; it also constitutes an impact on the supervisory work of the SMV;

44. In this sense, according to the guidelines established in subsection 4.2, numeral (iv) and (v) of the SANCTION CRITERIA, in the case of non-compliance in the submission of periodic information, a fine of 2,856 UIT would be applicable, equivalent to S/ 12,566.40 (Twelve thousand five hundred sixty-six and 40/100 Soles);

45. On the other hand, it should be noted that in this proceeding the existence of aggravating circumstances contemplated in subsection 4.2, numeral (vi) of the aforementioned SANCTION CRITERIA has not been determined;

46. In addition to the foregoing, it is appropriate to analyze the exempting and mitigating circumstances of liability established in article 257 of the TUO DE LA LPAG7 as well as the mitigating and exempting conditions of

[7] "Article 257.- Exemptions and mitigations of liability for infractions 1.- The following constitute exempting conditions of 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.

liability established in articles 26 and 27 of the SANCTION REGULATIONS. In this regard, it is not observed that in the present case any of the assumptions that constitute exempting conditions of liability has been configured;

47. With regard to the voluntary declaration of the commission of the infractions and the contribution of the offender to their clarification, established in article 257, numeral 2, subsection a) of the TUO DE LA LPAG and in article 26, literals a) and b) of the SANCTION REGULATIONS, it should be noted that CORIL SAB has acknowledged its responsibility for the infraction indicated in the third recital of this resolution, expressly and in writing, within the term granted for the submission of defenses, and in a precise, concise, clear, express and unconditional manner, without ambiguous or contradictory expressions, as well as has contributed to its clarification; therefore, according to the provisions of the aforementioned article 268, literal a), numeral 1 and fourth paragraph of the same article, the amount of the applicable fine should be reduced by fifty percent (50%);

48. In this sense, considering the foregoing, and that this sanctioning proceeding is related to infractions whose determination and proof is objective based on a deadline by which the information must be submitted, and also that their detection is evidenced as a result of the supervision and control activities carried out by the SMV on a continuous basis regarding compliance with the timely submission of information provided by the RAI; the 50% reduction in the fine to be imposed on CORIL SAB should be applied, in accordance with the provisions of article 26, subsection a), numeral 1 of the SANCTION REGULATIONS, so the determined fine of 2,856 UIT is reduced to 1,428 UIT, equivalent to S/ 6,283.20 (Six thousand two hundred eighty-three and 20/100 Soles);

49. In accordance with the provisions of article 32, numeral 17, of the Regulations on Organization and Functions of the SMV, approved by Supreme Decree No. 216-2011-EF and its amendments, as well as the SANCTION CRITERIA and its amendment;

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 235. 2.- The following constitute mitigating conditions of liability for infractions: a) If, once an administrative sanctioning proceeding has been initiated, the offender acknowledges its responsibility expressly and in writing. 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 rule."

8 "Article 26.- MITIGATING CIRCUMSTANCES OF LIABILITY The following constitute mitigating conditions of liability for infractions: a) Acknowledgment of responsibility by the offender expressly and in writing, once the administrative sanctioning proceeding has been initiated. 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 term granted for the submission of defenses, the reduction amount shall be fifty percent (50%). (…) The acknowledgment of responsibility regarding an infraction must be made in a precise, concise, clear, express and unconditional manner, 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.”

RESOLVES:

Article 1.- Declare that Grupo Coril Sociedad Agente de Bolsa S.A. has incurred one (1) infraction of a minor nature classified in Annex I, numeral 3, subsection 3.1 of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01, for having submitted, outside the period established in the applicable regulations, the individual financial statements corresponding to the close of the month of February 2021.

Article 2.- Sanction Grupo Coril Sociedad Agente de Bolsa S.A. with a fine of 1.428 UIT, equivalent to S/ 6,283.20 (Six thousand two hundred eighty-three and 20/100 Soles) for the infraction detailed in the preceding article.

Article 3.- This resolution does not exhaust the administrative remedy, unless it is consented to, and may be challenged before the Deputy Superintendency of Prudential Supervision by filing a reconsideration appeal, submitted to 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 a reconsideration appeal within fifteen (15) business days of notification and becomes final, it must be published on the SMV Institutional Page on the Single Digital Platform of the Peruvian State, in observance of 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/0.

Article 5.- Transcribe this resolution to Grupo Coril Sociedad Agente de Bolsa S.A. and to the Lima Stock Exchange S.A.

Register, communicate and publish.

Omar Gutiérrez Ochoa
Deputy Superintendent
Deputy Superintendency of Prudential Supervision