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Superintendency Resolution of the Deputy Superintendent SMV

No. 032-2024-SMV/10

Lima, 18 June 2024

Summary: Promotores e Inversiones Investa S.A. Sociedad Agente de Bolsa is sanctioned with one (1) warning for having incurred one (1) infraction of a minor nature classified in Annex I, numeral 3, subparagraph 3.1 of the Sanctions Regulations, for failing to submit the individual financial statements corresponding to the close of May 2021, within the term established in the applicable regulations.

Administered entity
:
Promotores e Inversiones Investa S.A. Sociedad Agente de Bolsa Subject :
Administrative sanctioning procedure
File No.:
2024010956

The Deputy Superintendent of Prudential Supervision

WHEREAS:

The administrative file No. 2024010956, and Report No. 721-2024-SMV/10.3, issued by the General Intendancy of Prudential Compliance; as well as the defenses submitted by Promotores e Inversiones Investa S.A. Sociedad Agente de Bolsa; and;

CONSIDERING:

1. Pursuant to article 1 of Law No. 29782, Law for the Strengthening of the Supervision of the Securities Market, 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 Promotores e Inversiones Investa S.A. Sociedad Agente de Bolsa (hereinafter, INVESTA 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. 1076-2024-SMV/10.3, notified on 18 March 2024 (hereinafter, OFFICIAL LETTER OF CHARGES), a charge was formulated against INVESTA SAB for infraction of the Regulations for Intermediation Agents, approved by SMV Resolution No. 034-2015-SMV-01 (hereinafter, RAI) in force at the time of the events, for failing to timely submit the individual financial statements corresponding to the close of May 2021, which were submitted on 01 July 20211. It should be noted that the deadline for the submission of this information was 30 June 2021;

4. The aforementioned non-compliance is classified in Annex I, numeral 3, subparagraph 3.1 of the Sanctions Regulations, approved by SMV Resolution No. 035-2018-SMV/01 (hereinafter, SANCTIONS REGULATIONS), which prescribes as an infraction of a minor nature: “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 27 March 2024, INVESTA SAB submitted the defenses to the observation made;

6. The charge formulated, as well as the defenses submitted by INVESTA SAB have been subject to evaluation by the General Intendancy of Prudential Compliance in Report No. 721-2024-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. 2370-2024-SMV/10, the administrative file to which this resolution refers was made available to INVESTA 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 INVESTA SAB incurred or not in infraction by failing to submit the individual financial statements corresponding to the close of May 2021, within the term established in article 95 of the RAI, in force at the date of the events;

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

III. ANALYSIS

3.1 Of the applicable regulations

9. Article 95 of the RAI establishes that:

[1] File No. 2021025483.

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“Article 95.- Obligations The Agents must submit to the SMV their financial statements and Complementary Information corresponding to each month-end, within the following thirty (30) calendar days. (…)”

3.2. Of the charges formulated

10. Through the OFFICIAL LETTER OF CHARGES, charges were formulated against INVESTA SAB for not communicating, within the term established by the regulations, the individual financial statements corresponding to the month-end of May 2021;

3.3. Of the defenses presented

11. INVESTA SAB argues that it is exempt from administrative liability, for the imputed charge, and therefore, from being liable to sanction, insofar as the interim financial statements corresponding to the month of May 2021 were submitted at 03:41:32 hours on 01 July 2021; that is, three (3) hours after the initial term expired;

12. Likewise, INVESTA SAB invokes exemptions from liability for correction before the imputation of charges. In this regard, the stock brokerage company indicates that the formulated charge reveals a partial reading of article 28° of the SANCTIONS REGULATION. INVESTA SAB points out that by express will of the legislator, in the referred article two norms with dissimilar effects coexist:

“Article 28°.-CASES IN WHICH CORRECTION DOES NOT APPLY AS AN EXEMPTION FROM LIABILITY Correction prior to the notification of the imputation of charges is not considered as an exemption from liability, when a communication demanding compliance with the obligation has been sent. They are not subject to correction for the purposes of the provisions of literal f) of article 27: (…) c) The late or incomplete presentation, or the non-presentation of material facts, financial information and annual reports”. (Underlining and highlighting by INVESTA SAB);

13. According to INVESTA SAB, under the first norm (first paragraph), correction is expressly admitted, before the imputation of charges, but limiting the possibility of correcting only if the administered party has not previously been required to comply with the obligation, which according to INVESTA SAB would be its case2. For its part, the intermediary specifies that through the second norm, the cases of omission to present financial information are established, without any possibility of correction;

[2] The Interim Financial Statements of INVESTA SAB, corresponding to May 2021, were submitted at 03:41:32 on 01 July 2021, 03 hours after the initial term expired. (footnote added by INVESTA SAB)

14. Consequently, INVESTA SAB indicates that it is exempt from administrative liability, because it corrected the presentation of interim financial statements without being required to comply with them;

15. Notwithstanding the foregoing, the stock brokerage company adds that it must be taken into account that article 255; numeral 1, literal f) of the TUO OF THE LPAG established as a ground for exemption from administrative liability the voluntary correction before the imputation of charges3;

16. In this context, INVESTA SAB points out that through the seventh recital of resolution SMV No. 035-2018-SMV/01 with which the Sanctions Regulation in the Securities Market was approved, which entered into force on 15 December 2018; it expressed erga omnes and urbi et orbi the will to incorporate the exemptions from liability in the regulatory norms4;

17. The stock brokerage company points out that, in open contradiction to what was expressed, and disregarding the provisions of article 255°, literal f) of the aforementioned TUO; consistent with article II of the Preliminary Title of the referred TUO5, the SMV establishes article 28°6 of the SANCTIONS REGULATION the cases in which voluntary correction before the communication of charges does not operate;

18. INVESTA SAB points out that through Supreme Decree No. 004-2019-JUS it issues a new TUO of Law No. 27444, the SMV persists

[3] SUPREME DECREE No.006-2017-JUS THE PRESIDENT OF THE REPUBLIC CONSIDERING: That, through Law No. 27444, General Administrative Procedure Law, the common norms are established for the actions of the administrative function of the State and regulates all administrative procedures developed in the entities, including special procedures: That, through Legislative Decree No. 1272. “Legislative Decree that modifies Law No. 27444, General Administrative Procedure Law and repeals Law No.29060, Administrative Silence Law” some articles are modified and incorporated to the aforementioned legal provision: (…) Article 255.- Exemptions and mitigating factors of liability for infractions 1.- The following constitute conditions exempting from liability for infractions: (…) 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 253. (Underlining and footnote added by INVESTA SA 4

[4] That, in this sense, the Project incorporates the new criteria that must be applied for the graduation of sanctions; provisions on corrective measures; the prescription and expiration of the sanctioning procedure; exempting and mitigating conditions of responsibility; the obligation to notify the instruction reports and those that contain the opinion regarding the challenge appeals; a greater development on the content of the complaints and the status of complainant; as well as assistance between SMV bodies in the processing of sanctioning procedures, among others; (Underlining and footnote added by INVESTA SAB) 5 Article 245.- Scope of application of this chapter

[5] 245.1 The provisions of this Chapter govern the power attributed to any of the entities to establish administrative infractions and the consequent sanctions for the administered. 245.2 (…) Special procedures cannot impose less favorable conditions on the administered than those provided in this Chapter. Article II.- Content 1. This Law contains common rules for the actions of the administrative function of the State and regulates all administrative procedures developed in the entities, including special procedures. 2. The laws that create and regulate special procedures cannot impose less favorable conditions on the administered than those provided in this Law.(…) (Underlining, highlighting and footnote added by INVESTA SAB)

[6] Article 28.- CASES IN WHICH RECTIFICATION DOES NOT APPLY AS AN EXEMPTION FROM LIABILITY Rectification prior to the notification of the imputation of charges is not considered as an exemption from liability, when communication demanding compliance with the obligation has been sent. (Underlining, highlighting and footnote added by INVESTA SAB)

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in disobeying the mandate now expressed in article 257° of the same, maintaining the same tenor of article 28° of the REGULATION OF SANCTIONS;

19. According to the stock brokerage firm, this generates a legal antinomy, which according to the TC ruling in File No. 047-2004-AI/TC7, within the framework of the Jurisdictional Plenary, is resolved among other principles, by that of Hierarchy of norms, with the higher-ranking norm prevailing. In this case, the current TUO of Law 27444, through its literal f); numeral 1 of article 257;

20. In this sense, INVESTA SAB emphasizes that it is exempt from administrative liability in application of the principle of normative hierarchy, by virtue of which, article 257° of the current TUO of Law 27444 prevails over article 28 of the REGULATION OF SANCTIONS;

21. Likewise, INVESTA SAB indicates that it is also exempt from administrative liability, because since 02 October 2019, and through SMV Resolution No. 024-2019-SMV/01, the draft of "Regime of gradualness of sanctions for late submission of financial information, annual report and material events" was disseminated. The stock brokerage firm highlights that for the present case, the dissemination of the aforementioned draft is transcendental, since through article 2 thereof, the SMV informs the administered that, regarding the treatment of non-compliances in the submission of financial information of the stock brokerage firm, article 28 of the REGULATION OF SANCTIONS will only now be applied:

"Article 2.- APPLICATION OF EXEMPTIONS AND MITIGATING FACTORS. The provisions established in articles 26, 27 and 28 of the Regulation of Sanctions are applicable to the non-compliances subject to this regime. Voluntary rectification is not applicable in accordance with the Regulation of Sanctions, in the cases subject to this norm". (Highlighting and underlining added by INVESTA SAB);

[7] CONSTITUTIONAL COURT JURISDICTIONAL PLENARY EXP. No. 047-2004-AI/TC JURISDICTIONAL PLENARY SENTENCE (…) 51. The opposite of coherence is antinomy or normative conflict; that is, the accreditation of situations in which two or more norms that have similar object prescribe incompatible solutions with each other, in such a way that the compliance or application of one of them implies the violation of the other, since the simultaneous application of both norms is impossible. As can be inferred, coherence is affected by the appearance of the so-called antinomies. These are generated by the existence of two norms that simultaneously pose different legal consequences for the same fact, event or occurrence. There, the existence of two or more norms affected by the "incompatibility syndrome" with each other is safeguarded. (…) 58. In this sense, the Constitutional Court has established: Validity in matters of constitutional justice, on the other hand, is a category related to the principle of normative hierarchy, according to which the lower norm (e.g., a norm with the rank of Law) will be valid only to the extent that it is formally and materially compatible with the higher norm (e.g., the Constitution). Having verified the invalidity of the Law, due to its incompatibility with the Fundamental Charter, it will be appropriate to declare its unconstitutionality, ceasing its effects from the day following the publication of the sentence of this Court that so declares it (article 204° of the Constitution), being impeded its application to the facts initiated while it had effect, provided that these have not concluded, and, where appropriate, the review of concluded processes in which the norm was applied may be allowed, if it dealt with criminal or tax matters (articles 36° and 40° of Law No. 26435-Organic of the Constitutional Court). 59. From the foregoing it follows that the principle of normative hierarchy is the only instrument that allows guaranteeing the validity of legal norms that are categorically inferior. Therefore, invalidity is the necessary consequence of the infringement of such principle. (underlining, result and footnote added by INVESTA SAB)

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22. INVESTA SAB states that on 4 September 2023, Resolution SMV No. 007-2023-SMV/01 was issued, by means of which the “Regime of gradualness of sanctions for late submission of financial information, annual report and material events” was approved, through article three of which they state that the following has been established:

“Article 3.- APPLICATION OF EXEMPTIONS AND MITIGATING CIRCUMSTANCES The provisions established in articles 26, 27 and 28 of the Sanctions Regulation or norms that modify or replace them are applicable to the breaches covered by this regime. Pursuant to the Sanctions Regulation, voluntary rectification is not applicable as an exemption from liability in the cases covered by this norm. (…)” (Underlining and highlighting added by INVESTA SAB);

23. INVESTA SAB states that, as can be observed, according to the chronology of the issuance of the transcribed norm, between 02 October 2019 and 04 September 2023, the application of article 28 of the SANCTIONS REGULATION was suspended for purposes of imputations regarding late submission of financial information;

24. Therefore, if the late submission that is the subject of the imputation of charges occurred between June and July 2021, it is not legally possible to apply the aforementioned article 28 of the SANCTIONS REGULATION, and therefore to consider the late submission non-rectifiable, as indicated by the stock brokerage firm;

25. INVESTA SAB emphasizes that, in this part of the defense, the stock brokerage firm is likewise exempted from administrative liability, due to the non-retroactivity of sanctioning norms;

3.4 Evaluation of the defenses

26. In its defenses, INVESTA SAB states that because it submitted the interim financial statements corresponding to the month of May 2021, three (3) hours after the regulatory deadline had expired, this would constitute a case of exemption from liability;

27. In this regard, it must be stated that article 95 of the RAI expressly and clearly establishes that the maximum date for submitting monthly financial statements is within the thirty (30) calendar days following the close of the month. In that sense, any submission of the aforementioned financial statements outside the regulatory deadline constitutes a breach of the regulations; therefore, what the stock brokerage firm alleges in this part lacks foundation;

28. On the other hand, according to the stock brokerage firm, pursuant to the first paragraph of article 28 of the SANCTIONS REGULATION, rectification before the imputation of charges is allowed, but only if the administered party had not previously been required to comply with the obligation, which would be its case, while the second paragraph establishes the cases in which rectification is not possible; and, consequently, it alleges that the exemption from liability for voluntary rectification should apply because it rectified the submission of the interim financial statements without having been required to comply with them;

29. In this regard, it should be noted that article 28 of the SANCTIONS REGULATION8 sets out the cases in which rectification does not apply as an exemption from liability, stating in its first paragraph that rectification carried out prior to the imputation of charges is not considered an exemption from liability when a communication requiring compliance with the obligation had been sent, that is, in those cases in which the rectification is not voluntary. Likewise, the second paragraph of the cited article sets out those cases that are not eligible for the application of the exemption from liability for voluntary rectification before the imputation of charges (indicated in article 27, literal f), of the SANCTIONS REGULATION). In this regard, it is noted that within said assumptions is found, among others, the late or incomplete presentation of material facts, financial information and annual reports; therefore, the correction of the late presentation of the financial statements evaluated in this sanctioning procedure is not possible;

30. Additionally, INVESTA SAB alleges that there would be a supposed antinomy or contradiction between the provisions of the TUO DE LA LPAG regarding the exemption from liability for voluntary correction (literal f) of article 257 of the TUO DE LA LPAG) and article 28 of the REGLAMENTO DE SANCIONES when establishing assumptions in which voluntary correction does not operate before the communication of charges;

31. In this regard, it must be specified that the second paragraph of article 28 of the REGLAMENTO DE SANCIONES includes those conducts that are not eligible for voluntary correction, because in these cases it is not possible to reverse, repair or compensate the damage caused as a consequence of the commission of the infraction. Such is the case of infractions for not timely presenting interim financial statements by brokerage firms, because their late presentation causes immediate harm to market transparency9, which is the legal interest protected by the SMV;

32. Indeed, any non-compliance with the regulations on the timely presentation of financial information, that is, the non-observance of the established presentation deadlines, affects the transparency of the securities market, as this safeguards the right of current and potential investors and the market in general to access such information in a timely manner, in order to adopt investment decisions or carry out a certain evaluation. That is why financial statements have a deadline for presentation, and their untimely presentation produces misinformation in the market;

[8] “Article 28.- ASSUMPTIONS IN WHICH CORRECTION DOES NOT APPLY AS AN EXEMPTION FROM LIABILITY Correction prior to the notification of the imputation of charges is not considered as an exemption from liability, when a communication demanding compliance with the obligation has been issued. They are not eligible for correction for the purposes of the provisions of literal f) of article 27: a) The presentation of inaccurate or false information or documentation to the SMV and/or that is disclosed to the market. b) The contravention of market abuse rules, referring to the improper use of privileged information and market manipulation. c) The late or incomplete presentation, or the non-presentation of material facts, financial information and annual reports. (…)”.

[9] According to the principle of transparency of the securities market, the information made available to investors and the general public must comply with certain conditions, such as veracity, sufficiency, and timeliness, in order to protect investors and promote efficient and transparent markets.

33. In that sense, in general a late presentation could not correct the infraction of INVESTA SAB's duty to timely present its financial statements. This taking into account that the constitutive elements of the infractions of delivery regarding untimely presentation are precisely the non-compliance with the delivery of information within a determined period, so that, under the assumption described in article 257°, numeral 1, literal f) of the TUO de la LPAG, it is not possible for that type of infraction to be corrected with a late presentation;

34. Furthermore, it is pertinent to recall the duty of administrative authorities to interpret administrative norms in the manner that best serves the public purpose to which they are directed, reasonably preserving the rights of the administered, as required by article 86°10, numeral 8 of the TUO DE LA LPAG. In the present case, the public purpose safeguarded by the norms referring to the timely presentation of financial statements by brokerage firms is that the information contained in them be transferred to the market in a sufficient, truthful, and timely manner, so that the trust of the persons involved in said market is preserved. Otherwise, if it were accepted that infractions to said duties could be “corrected” later, trust in the market would be harmed, and therefore transaction costs (for obtaining reliable information) would increase, thereby reducing investment opportunities and the efficient allocation of resources11;

35. It must be remembered that the TUO DE LA LPAG establishes the general guidelines that must govern the administrative procedure in all public entities of the Peruvian State. However, the SMV can issue complementary norms referring to the administrative procedure12, in accordance with its specific functions, as long as it does not contravene the provisions or general principles established by the TUO DE LA LPAG;

36. Therefore, article 28 of the REGLAMENTO DE SANCIONES does not contradict the provisions of the TUO DE LA LPAG regarding the exemption from liability for voluntary correction, it only refers to assumptions that are not possible to be corrected, as is the case of “the late presentation of financial information”, which is not correctable for the sake of the principle of market transparency. In that sense, the antinomy or contradiction alleged by the brokerage firm is not configured;

37. On the other hand, the brokerage firm indicates that since 2 October 2019, and through Resolution No. 024-2019-SMV/01, the draft of “Regime of Graduality of Sanctions for presentation

[10] Article 86.- Duties of the authorities in the proceedings The following are the duties of the authorities with respect to the administrative procedure and its participants: (…) 8. To interpret administrative regulations in a way that best serves the public purpose to which they are directed, reasonably preserving the rights of the administered. (…)

[11] On the economic analysis of jurisdictional decisions and how they affect the economy and transaction costs, see Coase, R. (1960), The problem of Social Cost. The Journal of Law & Economics. The University of Chicago, 3, p. 19.

[12] Article 40.- Legality of the procedure 40.1 (…) In the case of regulatory bodies, these may establish procedures and requirements in the exercise of their regulatory function.

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late submission of financial information, annual report and material events” and on 4 September 2023, SMV Resolution N° 007-2023-SMV/01 was issued, whereby the “Regime of Graduality of Sanctions for Late Submission of Financial Information, Annual Report and Material Events” was approved. In this regard, INVESTA SAB states that according to the chronology of the issuance of the aforementioned regulations, between 2 October 2019 and 04 September 2023, the application of Article 28 of the SANCTIONS REGULATIONS was suspended, for the purposes of charges regarding the late submission of financial information. Therefore, if the late submission that is the subject of the charges occurred between June and July 2021, it is not legally possible to apply the aforementioned Article 28° of the SANCTIONS REGULATIONS, for which reason the stock exchange agent company would be exempt from administrative liability;

38. In this regard, it is appropriate to indicate that SMV Resolution Nº 024-2019-SMV/01 does not establish that Article 28 of the SANCTIONS REGULATIONS cannot be applied or that the submission of financial and eventual information is suspended, but rather that, through the aforementioned regulation, the dissemination of the draft “Regime of Graduality of Sanctions for Late Submission of Financial Information, Annual Report and Material Events” was authorized, so that within thirty (30) calendar days after its publication in the Official Gazette “El Peruano”, any interested person may submit to the SMV their comments and observations regarding said draft, in accordance with Articles 1 and 2 of the “Policy on the publication of draft regulations, general legal norms and other administrative acts of the SMV”, approved by SMV Resolution Nº 014-2014-SMV-01. It is important to highlight that the suspension or inapplicability of an obligation must be express in the regulation, according to the principle of legality, which is not the case here;

39. Likewise, it should be noted that, although Article 2 of SMV Resolution No. 007-2023-SMV/01 establishes, among others, that the provisions set forth in Articles 26, 27 and 28 of the SANCTIONS REGULATION or rules that modify or replace them are applicable to failures to timely submit financial information, at the time the events occurred, Article 28 of the SANCTIONS REGULATION was in force, which is applicable to all administrative sanctioning proceedings initiated by the SMV, in accordance with the provisions of Article 1 of the aforementioned regulation13. In that regard, what was alleged by INVESTA SAB lacks merit;

40. Indeed, in the present case, it is verified that INVESTA SAB submitted the individual financial statements corresponding to the close of May 2021 after the deadline established in Article 95 of the RAI. Said

[13] "Article 1.- LEGAL BASIS" "This Regulation governs the exercise of the sanctioning power attributed to the Superintendency of the Securities Market - SMV through the Single Concorded Text of its Organic Law, Decree Law No. 26126; the Securities Market Law, Legislative Decree No. 861; Decree Law No. 21907 on Collective Fund Management Companies; the General Corporations Law, Law No. 26887; the Law promoting the exchange or redemption of investment shares, Law No. 28739; the Urgency Decree approving measures that promote the financing of MSMEs, Entrepreneurship and Startups, Urgency Decree No. 013-2020 and other rules that grant sanctioning powers to the SMV." This rule regulates the sanctioning procedure under the responsibility of the competent bodies indicated in the Regulations of Organization and Functions of the SMV and establishes the administrative infractions of the rules under the competence of this Superintendency, as well as the sanctions applicable to them."

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financial information should have been submitted, at the latest, on 30 June 2021; however, it was submitted on 01 July 2021;

41. Based on the foregoing, it is concluded that INVESTA SAB has not rebutted the charge imputed;

42. Consequently, it is noted that INVESTA SAB has incurred one (1) infraction classified as minor, typified in Annex I, numeral 3, subsection 3.1, of the SANCTIONS REGULATION according to which it constitutes an infraction: “To present 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 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

43. In accordance with the provisions of article 35 of the SANCTIONS REGULATION, 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);

44. In this regard, taking into account that in this sanctioning procedure one (1) infraction classified as minor is being evaluated, referring to the breach of the deadline for submitting the individual financial statements at the close of May 2021, it must be considered that subsection 1 of the “Criteria Applicable to the Administrative Sanctioning Procedure for Breach of the Rules regulating the Remission of Periodic or Eventual Information”, approved by SMV Resolution No. 006-2012-SMV/01 and its amendment14 (hereinafter, SANCTION CRITERIA) provides 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 Investment 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 obliged to submit periodic or eventual information for breaches in the timely remission of said information that are typified as minor infractions in the annexes of the Sanctions Regulation, approved by CONASEV Resolution No. 055-2001-EF-94.10. The criteria developed below apply exclusively to breaches of the rules regulating the remission of periodic or eventual information and do not apply extensively to the other cases investigated by this Superintendency”;

45. Therefore, to evaluate the sanction that must be imposed on INVESTA SAB for the breach of the deadline for submitting periodic information described in this resolution, the SANCTION CRITERIA must be applied;

[14] Amended by article 3 of SMV Resolution No. 010-2014-SMV/01 of 22 May 2014, in force as of 25 May 2014. Said resolution amended the first paragraph of the Fourth Criterion of subsection 4.1, numerals (ii), (iv), (v) (vi) and (vii) of subsection 4.2 of the Criteria applicable to the administrative sanctioning procedure for breach of the rules regulating the remission of periodic or eventual information, approved by SMV Resolution No. 006-2012- SMV/01.

46. Likewise, it must be mentioned that the application of the SANCTION 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 and persons registered in the RPMV for breaches in the deadlines for remission of information to which they are obliged by the rules and for omission in the remission of that information required by the SMV;

47. In order to determine the sanction corresponding to the infraction under evaluation, and in accordance with the provisions of subsection 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 LPAG, in article 25 of the SANCTIONS REGULATION, as well as in subsection 4.1 of the SANCTION CRITERIA, whose observance is mandatory, must be taken into account;

48. Within this framework, the evaluation of the sanction must consider: a) antecedents of the offender; b) recidivism; c) the circumstances of the commission of the infraction; d) the harm caused and the repercussion in the market; e) the illicit benefit resulting from the commission of the infraction; f) probability of detection of the infraction; g) severity of the damage to the public interest and/or protected legal good; h) the existence or not of intentionality in the conduct of the offender. In this sense, each of the sanction criteria is evaluated;

49. Regarding the severity of the damage to the public interest and/or protected legal right, it must be taken into consideration that in the case of the submission of periodic or occasional information, any non-compliance with the regulations on its timely presentation, that is, the failure to observe the deadlines established to present said information, affects the transparency of the securities market, insofar as it safeguards the right of investors (actual and 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;

50. Therefore, it can be stated that INVESTA SAB has affected the protected legal right that is market transparency, given that it submitted late the individual financial statements corresponding to the close of May 2021;

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

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

53. In this regard, from the review carried out in said period, in relation to the charges subject to evaluation, it has been verified that INVESTA SAB has as a sanction antecedent the Resolution of the Deputy Superintendence SMV No. 118-2017-SMV/1015 which sanctioned it with one (01) warning for having incurred an infraction of a minor nature typified in Annex X, numeral 3, subsection 3.14 of the Sanction Regulations, approved by CONASEV Resolution No. 055-2001-EF/94.10 and its amendments, for not having presented within the deadline established in the regulations the relevant fact of 09 February 2016. Said resolution became final on 15 January 2018; Regarding recidivism for the commission of the same infraction, the final sanction imposed by the SMV within the period of one (1) year prior to the commission of the infraction to be sanctioned is taken into account. Within this framework, it must be stated that INVESTA SAB does not present sanctions within the aforementioned period, for the commission of the same infraction subject to analysis, in the present administrative sanctioning procedure, and therefore recidivism is not configured;

54. As for the circumstances of the commission of the infraction, it must be mentioned that INVESTA SAB, in its capacity as a company supervised by the SMV, knows the regulations that govern the securities market, and, in that sense, the regulations that oblige it to present to the SMV periodic information within the deadlines established therein; however, INVESTA SAB submitted late the individual financial statements corresponding to the close of May 2021, subject to evaluation in the present sanctioning procedure;

55. Regarding the illicit benefit resulting from the commission of the infractions, it must be noted that it has not been proven that INVESTA SAB has obtained a benefit directly related to the infraction subject to analysis in the present administrative sanctioning procedure;

56. As for the existence or not of intentionality in the conduct of the offender, it has not been evidenced that INVESTA SAB has acted with intentionality in the commission of the infraction subject to evaluation;

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

58. Continuing with the analysis, it is appropriate to determine the sanction to be imposed on INVESTA SAB for the infraction subject to analysis. In this sense, the SANCTION CRITERIA establish that a warning sanction may be imposed when the following guidelines established in subsection 4.2, numeral (ii) of said criteria are concurrently met: (i) the affectation to market transparency is minimal; (ii) the infraction committed has not caused a specific harm to investors or associates; (iii) the offending subject does not have antecedents or, if having them, they are infractions typified as minor offenses imposed in the four (4) years prior to the commission of the infraction being evaluated;

[15] Resolution notified on 19 December 2017

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(iv) the offending subject 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 infraction;

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

60. On this point, as can be seen from the assessment made in this Resolution, it has been verified that INVESTA SAB has one (1) sanction record in the four (4) years prior to the commission of the infringement under evaluation, which corresponds to an infringement classified as minor;

61. Likewise, it has not been proven that the infringement committed caused concrete harm to investors or members, it has not been shown that INVESTA SAB obtained a benefit from its illegal conduct, nor has it been proven that it acted with intent in the commission of the infringements, and no recidivism has been observed in the present case;

62. In relation to the condition referring to the fact that the impairment of transparency in the market must be minimal, it must be noted in principle, and as has been mentioned in the assessment of the sanction criteria, that any non-compliance with the regulations regarding the established deadlines for submitting periodic or occasional information affects the transparency of the securities market, all the more so if such non-compliance is prolonged over time. Notwithstanding the foregoing, it must be indicated that although the submission of the interim financial statements was delayed by less than one (1) day (3:43:32 hours), it can be seen that during the time in which INVESTA SAB did not submit said information to the SMV, the degree of impairment of market transparency has been minimal. Without prejudice to the fact that in similar cases, a greater delay in submitting the information may determine a greater degree of impairment of the transparency of the securities market;

63. Therefore, as a result of the assessment made, INVESTA SAB meets the conditions established in paragraph 4.2, item (ii) of the SANCTION CRITERIA, and therefore, in accordance with said criteria, it is appropriate to apply a reprimand sanction for the infringement under analysis;

64. In addition to the foregoing, it is appropriate to analyze the exculpatory and mitigating circumstances of liability established in article 257 of the TUO LPAG16, as well as the mitigating and exculpatory conditions of liability established in articles 26 and 27 of the SANCTIONS REGULATION. In this regard, it is not

[16] “Article 257.- Exculpatory and mitigating circumstances of liability for infringements 1.- The following constitute conditions exempting liability for infringements: a) Force majeure or fortuitous event duly proven. b) Acting in compliance with a legal duty or the legitimate exercise of the right of defense. c) Mental incapacity duly proven by the competent authority, provided that it affects the ability to understand the infringement. d) The mandatory order of a competent authority, issued in the exercise of its functions. e) Error induced by the Administration or by a confusing or illegal administrative provision. f) Voluntary rectification by the potential sanctioned party of the act or omission imputed as constituting an administrative infringement, prior to the notification of the imputation of charges referred to in paragraph 3) of article 235. 2.- The following constitute mitigating conditions of liability for infringements: a) If, once an administrative sanctioning procedure has been initiated, the infringer expressly and in writing acknowledges their liability. In cases where the applicable sanction is a fine, it shall be reduced to an amount not less than half of its value. b) Others established by special regulation.”

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observe that in the present case any of the circumstances constituting conditions exempting liability have been configured;

65. Likewise, in accordance with the foregoing, regarding the circumstances constituting mitigating conditions of liability, in relation to the voluntary declaration of the commission of the infringements (article 257, item 2 of the TUO LPAG) and the infringer's contribution to their clarification, established in article 26, letters a) and b) of the SANCTIONS REGULATION17, it must be indicated that INVESTA SAB has not expressly acknowledged the commission of the infringement under evaluation; and has not obstructed the clarification of the facts;

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

RESOLVES:

Article 1º.- To declare that Promotores e Inversiones Investa S.A. Sociedad Agente de Bolsa has incurred in one (1) minor infringement classified in Annex I, item 3, paragraph 3.1 of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01, for having submitted, outside the deadline established in the applicable regulations, the individual financial statements corresponding to the close of the month of May 2021.

Article 2º.- To sanction Promotores e Inversiones Investa S.A. Sociedad Agente de Bolsa with one (1) reprimand for the commission of the infringement referred to in the preceding article.

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

Article 4º.- In the event that this resolution is not challenged by means of a reconsideration appeal within fifteen (15) business days of notification and becomes final, it must be published on the SMV's Institutional Website on the Single Digital Platform of the Peruvian State, in observance of the provisions of item 1, Article 7º of the Policy on the dissemination of regulatory projects, legal norms of a general nature, early agenda and other administrative acts of the SMV, approved by Resolution SMV Nº 014-2014-SMV/01 and its amendment, and by the provisions of Article 14° of the Sanctions Regulations, approved by Resolution SMV N° 035-2018-SMV/01.

[17] “Article 26.- MITIGATING FACTORS OF LIABILITY FOR VIOLATIONS The following constitute mitigating conditions of liability for violations: a) Express and written acknowledgment of responsibility by the violator, once the administrative sanctioning procedure has been initiated. (…) b) Contribution by the violator to the clarification of the violation. (…)”.

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Article 5º.- Transcribe this resolution to Promotores e Inversiones Investa S.A. Sociedad Agente de Bolsa and to the Bolsa de Valores de Lima S.A.

Omar Gutiérrez Ochoa
Deputy Superintendent
Deputy Superintendency of Prudential Supervision

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Deputy Superintendency Resolution No. 032-2024-SMV/10 sanctioning Promotores e Inversiones Investa S.A. Sociedad Agente de Bolsa