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"

SMV Deputy Superintendency Resolution

No. 049-2024-SMV/10

Lima, 13 September 2024

Summary: Autoplan Empresa Administradora de Fondos Colectivos S.A. is sanctioned with two reprimands, for having incurred two (2) infractions of a minor nature typified in Annex XIII, numeral 3, subsection 3.7 of the Sanctions Regulation, for failing to send the associate the account statements and assembly calendars corresponding to the collective funds administration contract signed in accordance with the provisions of the applicable regulations.

Administered party
:
Autoplan Empresa Administradora de Fondos Colectivos S.A.
Subject
:
Administrative sanctioning procedure
File No.:
2024012000

The Deputy Superintendent of Prudential Supervision

VIEWS:

Administrative file No. 2024012000, and Report No. 773-2024-SMV/10.3, issued by the General Intendancy of Prudential Compliance; 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 any reference to CONASEV in legal norms shall be understood as made to the SMV;

I. FACTS

2. On 18 August 2020, the COMPLAINANT1 signed with Autoplan Empresa Administradora de Fondos Colectivos S.A. (hereinafter, AUTOPLAN EAFC) the "Collective Funds Administration Contract – Purchase Certificate Modality"

[1] The Annex attached to this resolution details the complete data of the natural persons to whom the denominations used in this resolution belong, and likewise, if applicable, the email addresses.

of the Autoplan 0002 program, with contract No. 022827, Group No. 36, with the value of the purchase certificate of US$ 10,000.00 (ten thousand with 00/100 US dollars) (hereinafter, CONTRACT);

3. By means of the brief received on 30 May 2022, the COMPLAINANT filed a complaint before the SMV against AUTOPLAN EAFC2, in which he states, among others, that he was not informed about the first assembly that took place on 25 August 2020, nor was he made to sign the acknowledgment of receipt of knowledge of the first three (3) assemblies in which he was to participate;

4. Additionally, the COMPLAINANT states that he has not been given the monthly account statements and the calendar on a quarterly basis during the first 10 months of the contract, an obligation contained in Article 70 of the Regulation of the Collective Funds System and its Administrating Companies, approved by SMV Resolution No. 020-2014-SMV-01 (hereinafter, REGULATION);

5. With the aforementioned complaint, the COMPLAINANT, among other evidence, presented the following: i) Copy of the first and last page without the associate's signature, of the Collective Funds Administration Contract, Autoplan-002 No. 0022827, and, ii) Copy of the results of the award assembly of the Autoplan 002 program for the month of August 2020;

6. By Official Letter No. 2949-2022-SMV/10.3, notified on 07 June 2022 (hereinafter, OFFICIAL LETTER), the complaint filed by the COMPLAINANT was brought to the attention of AUTOPLAN EAFC so that it may submit the corresponding comments and it was requested, among others, the following documentation and/or information:

"(...)

d. Copy of the notification receipt of the summons to the first (3) Assemblies in which the COMPLAINANT was to participate, as well as the respective Calendar of Associate Assemblies, for the CONTRACT signed.

(...)

f. Receipt of remission of all account statements sent to the COMPLAINANT, since his entry by the CONTRACT signed.

(...);

7. On 27 October 2022, AUTOPLAN EAFC submitted a brief requesting an extension to present the information and documentation required by the OFFICIAL LETTER; which was granted by Official Letter No. 5605-2022-SMV/10.3 notified on 2 November 2022;

8. With the brief presented on 16 November 2022, AUTOPLAN EAFC requests an additional term for the presentation of the information required by the OFFICIAL LETTER;

9. By Official Letter No. 6025-2022-SMV/10.3 notified on 28 November 2022, the granting of the requested extension was brought to the attention of AUTOPLAN EAFC;

[2] With File No. 2022022901

10. In response to the OFFICIAL LETTER, on 7 December 2022, AUTOPLAN EAFC submitted its comments regarding the complaint, as well as part of the information required by the SMV. With said response AUTOPLAN, among other evidence, presented the following: i) Copy of the receipt of the calendar of the next three (3) assemblies, signed by the COMPLAINANT ii) Copy of the account statements of the COMPLAINANT, for the months of 06/2021, 07/2021, 08/2021, 09/2021, 10/2021, 11/2021, 12/2021, 01/2022, 02/2022, 03/2022, 04/2022, 05/2022 and 06/2022 iii) Copy of the Extrajudicial Transaction (hereinafter, the TRANSACTION) signed between AUTOPLAN EAFC and the COMPLAINANT, dated 11 August 2022 iv) Copy of the withdrawal brief with signature and fingerprint of the COMPLAINANT, dated 11 August 2022;

11. By Official Letter No. 1189-2024-SMV/10.3 notified on 25 March 2024 (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;

12. AUTOPLAN EAFC has not presented its defenses to the administrative sanctioning procedure initiated by the OFFICIAL LETTER OF CHARGES, as of the date of issuance of this Resolution;

13. The charges brought against AUTOPLAN EAFC have been the subject of evaluation by the General Superintendence of Prudential Compliance in Report No. 773-2024-SMV/10.3, which has been submitted to the knowledge of this Deputy Superintendence;

14. In observance of 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, paragraph 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. 2475-2024-SMV/10, the administrative file to which this resolution refers was made available to AUTOPLAN EAFC for its review;

II. ISSUES TO BE DETERMINED

15. In the present administrative procedure, in the opinion of this Deputy Superintendence, it is appropriate to determine the following:

a. Whether AUTOPLAN EAFC incurred or not in an infraction for failing to send the COMPLAINANT the account statements and assembly calendars corresponding to the collective funds administration contract signed in accordance with the provisions of Article 70 of the REGULATION and clause 10, item 10.4, literal c) of the CONTRACT.

b. Whether or not it is appropriate to impose sanctions on AUTOPLAN EAFC;

III. ANALYSIS

3.1 Of the Applicable Regulations

16. Regarding the CONTRACT, Article 21, first paragraph, of the REGULATION provides:

“Article 21.- Contract The Contract is of a private nature and has a collective character, regulates the relations between the Associates and the Administrator, and in it the rights and obligations of both parties are established; its content is governed by the provisions of Article 95 of the Regulation.

(…)”.;

17. Regarding the delivery of account statements to the associate and corresponding assembly calendars, clause 10, item 10.4, literal l) of the CONTRACT, establishes that the functions and obligations of AUTOPLAN EAFC are the following:

“10.4 FUNCTIONS AND OBLIGATIONS OF AUTOPLAN:

The functions and obligations of the Administrator are the following:

(…)

l) Others provided in the Regulation.

(…)”.

18. In this regard, Article 70, second paragraph of the REGULATION indicates the following:

Article 70.- Obligation to provide periodic information to the Associates

The Administrator has the obligation to provide information to its Associates about their account statements and the Assembly calendar. When applicable, it will send information on the price variation of the goods under determined goods Programs and other services that they contract.

The account statements must be sent at least at the frequency in which the Assemblies are held. The Assembly calendar must be sent with a minimum frequency of three (03) months. The price variation of the goods under determined goods Programs may be included in the account statement that the Administrator sends to the Associate. The Associate's account statement must contain at least the information contained in Annex 8.

The modality to be used to provide the aforementioned information must be agreed upon in the Contracts. Additionally, the Administrator may use different electronic communication means that allow the Associate to be able to take adequate and timely knowledge of the respective information.

In the event that email is used, said means must guarantee non-repudiation and allow traceability of the communication”. (Underline added).

(…).” (Underline added);

3.2. Of the Charges Brought

3.2.1. Regarding the delivery of account statements to the associate

19. According to the provisions of the regulatory framework, the administering company has the obligation to send the account statements to its associates at least at the same frequency in which the assemblies are held and, through the modality established in the CONTRACT. In that sense, AUTOPLAN EAFC should have sent the COMPLAINANT its account statements monthly during the term of its contract;

20. In this regard, the COMPLAINANT has stated that AUTOPLAN EAFC did not comply with delivering its account statements on a monthly basis during the first ten (10) months corresponding to the CONTRACT, so, through the OFFICIAL LETTER, the administering company was requested the proof of remission of all account statements sent to the COMPLAINANT since its entry into the collective funds system;

21. It should be noted that, on 7 December 2022, AUTOPLAN EAFC presented copies of the account statements corresponding to the COMPLAINANT from June 2021 to June 2022; however, it did not present their respective proof of remission. On the other hand, it did not comply with presenting the proof of receipt of the account statements by the COMPLAINANT from the month of August 2020 (month of subscription of the contract) until May 2021. Therefore, AUTOPLAN EAFC has not presented evidence that accredits the remission to the COMPLAINANT of the account statements corresponding to the CONTRACT;

22. In that sense, it is noted that AUTOPLAN EAFC would have breached clause 10, item 10.4, literal l) of the CONTRACT and Article 70 of the REGULATION, by not having accredited that it sent the COMPLAINANT the information corresponding to its account statements in the indicated periods;

23. Therefore, it was imputed to AUTOPLAN EAFC THAT it would have incurred in one (1) minor infraction typified in Annex XIII, item 3, subitem 3.7 of the SANCTIONS REGULATION, according to which it constitutes an infraction: “Not sending timely to the associates the information on the account statements or assembly calendar”;

3.2.2 Regarding the remission of the assembly calendars corresponding to the Contract

24. According to the regulatory framework, the administering company has the obligation to provide information to the associate, about the assembly calendar. Likewise, it is specified that the assembly calendar must be sent at a minimum frequency of three (3) months, through the modality established in the CONTRACT;

25. In that sense, AUTOPLAN EAFC should have sent the COMPLAINANT its assembly calendar during the term of the CONTRACT; that is, in this case, at least at a minimum frequency of three (3) months;

26. In this regard, the COMPLAINANT has stated that AUTOPLAN EAFC failed to inform it of the dates on which the assemblies were held during the first ten (10) months corresponding to the CONTRACT, and therefore, through the OFFICIAL LETTER, the administering company was requested to provide the proof of sending of the assembly calendars of associates sent to the COMPLAINANT;

27. It should be noted that, on 7 December 2022, AUTOPLAN EAFC submitted copies of the account statements which also specify the dates of the upcoming assemblies corresponding to the COMPLAINANT from June 2021 to June 2022; however, it did not submit their respective proof of sending. On the other hand, it failed to submit the account statements which also specify the dates of the upcoming assemblies from the month of August 2020 (month of subscription of the contract) to May 2021, and their respective proof of sending. It should be mentioned that although AUTOPLAN EAFC submitted proof of receipt of the calendar for the first three (3) assemblies, those dates are not consistent with the date of subscription of the CONTRACT. Therefore, AUTOPLAN EAFC has not submitted evidence proving the sending to the COMPLAINANT of the assembly calendar corresponding to the CONTRACT;

28. In that sense, it is noted that AUTOPLAN EAFC would have breached clause 10, numeral 10.4, literal l) of the CONTRACT and article 70° of the REGULATION, by not having proven that it sent the COMPLAINANT the assembly calendar in the indicated periods;

29. Therefore, AUTOPLAN EAFC was charged with having incurred one (1) minor infraction classified in Annex XIII, numeral 3, subparagraph 3.7 of the SANCTIONS REGULATION, according to which the following constitutes an infraction: “Failure to timely send associates information on account statements or assembly calendars”;

3.3. On the defenses

30. In this regard, it should be noted that AUTOPLAN EAFC, as of the date of issuance of this resolution, has not submitted defenses to the observations made through the OFFICIAL LETTER OF CHARGES;

3.4 On the analysis of the charges

31. Initially, it should be noted that AUTOPLAN EAFC is a company supervised by the SMV, with authorization to operate granted through Superintendency Resolution No. 024-2015-SMV/02 of 17 February 2015, and it 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 therefore it has the obligation to act diligently as a collective funds administering company;

32. However, the foregoing is not observed in this case, to the extent that, according to the information in this file, it has been proven that AUTOPLAN failed to send the COMPLAINANT its account statements monthly3 from the month of August 2020 (the contract was signed on 18 August 2020) to the month of June 2022. It should be noted that the contract was terminated by agreement reached between the parties in the month of July 2022 4 . Likewise, it also failed to send the assembly calendars, at least quarterly, from the month of August 2020 to June 2022;

33. Consequently, AUTOPLAN breached the provisions of article 70 of the REGULATION and the provisions of clause 10, numeral 10.4, literal l) of the CONTRACT, according to which collective funds administering companies are obliged to provide their associates with information on their account statements, and must send such documents at least at the frequency with which the assemblies are held, as well as the assembly calendars at a minimum frequency of three (3) months;

34. Therefore, AUTOPLAN incurred two (02) infractions classified as minor, in accordance with Annex XIII, numeral 3, subparagraph 3.7 of the SANCTIONS REGULATION, according to which the following constitutes an infraction: “Failure to timely send associates information on account statements or assembly calendars”;

IV. EVALUATION OF THE SANCTION

[3] It should be specified that the assemblies of the group corresponding to the CONTRACT were held monthly.

[4] From the review of the information sent by AUTOPLAN EAFC to the SMV in the “Associate Status File (SIT)”, in accordance with the provisions of the “Manual of Technical Specifications for the submission to the SMV of information from Collective Funds Administering Companies” approved by Superintendency Resolution No. 102-2016-SMV/02 and registered in the SMV's collective funds information systems, the COMPLAINANT presents the status of “Terminated” as of 31 July 2022.

35. In accordance with article 7 of Decreto Ley No. 21907 on Collective Funds Companies and article 25 of the SANCTIONS REGULATION; in accordance with article 248, numeral 35 of the TUO DE LA LPAG, and article 2576 of the aforementioned normative body; the administrative sanctions imposed must take into account the criteria set forth by Decreto Ley No. 21907, the SANCTIONS REGULATION and the TUO DE LA LPAG;

36. Within that framework, the evaluation of the sanction must consider: a) Offender's background; b) Recidivism; c) Circumstances of the commission of the infraction; d) Economic harm caused and its impact on the market; e) Illicit 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) Existence or not of intent in the offender's conduct;

37. In that sense, in order to reconcile the criteria of the TUO DE LA LPAG with those indicated in Decreto Ley N° 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;

38. With regard to the sanction antecedents, in accordance with the provisions of article 25, literal a) of the REGLAMENTO DE SANCIONES, the firm sanctions imposed by the SMV within the term of four (4) years prior to the commission of the infraction to be sanctioned constitute antecedents. The aforementioned article specifies that the commission of the same infraction in the year prior to the infraction to be sanctioned is not considered an antecedent;

[5] “Article 248.- Principles of the 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 norms or assuming the sanction. However, the sanctions to be applied must be proportional to the non-compliance qualified as an infraction, observing the following criteria indicated for their gradation: a) The illicit benefit resulting from the commission of the infraction; b) The probability of detection of the infraction; c) The severity of the damage to the public interest and/or protected legal good; d) The economic harm caused; e) Recidivism, for the commission of the same infraction within the term of one (1) year from when the resolution that sanctioned the first infraction became firm. f) The circumstances of the commission of the infraction; and g) The existence or not of intent in the conduct of the offender”.

[6] “Article 257°.- Exemptions and mitigating circumstances of liability for infractions 1.- The following constitute conditions exempting liability for infractions: a) Fortuitous event or force majeure 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 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 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 norm”.

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

No.	Resolution	Resolved	Firmness
i	Assistant Superintendent of SMV Resolution 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 Reglamento de Sanciones approved by Resolución CONASEV N° 055-2001-EF/94.10 and its amending norms (hereinafter ANTIGUO REGLAMENTO DE SANCIONES), 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
	Assistant Superintendent of SMV Resolution No. 017-2018-SMV/108	Autoplan Empresa Administradora de Fondos Colectivos S.A. is sanctioned with six (6) warnings and a fine of 15.48 UIT for having incurred eleven (11) infractions of a minor nature typified in Annex XIV, numeral 3, subsection 3.1 of the Reglamento de Sanciones, for not having complied with submitting periodic information within the term established in the applicable regulations. The reconsideration appeal was resolved by Resolución de Superintendencia Adjunta SMV N° 070-2021-SMV/10.	30/12/2021
ii	Assistant Superintendent of SMV Resolution No. 011-2019-SMV/109	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 ANTIGUO REGLAMENTO DE SANCIONES, for not having adequately determined the order of preference of the substitute awardees.	11/04/2019
	Deputy Superintendent of SMV Resolution No. 004-2020-SMV/1010	Autoplan Empresa Administradora de Fondos Colectivos S.A. 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 Reglamento de Sanciones, 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 Reglamento de Sanciones, for not timely sending to the associate the information on the assembly calendar. The appeal was resolved by Resolución de Superintendente SMV N° 119-2020-SMV/10.	01/12/2020
	Deputy Superintendent of SMV Resolution No.	Autoplan Empresa Administradora de Fondos Colectivos S.A. is sanctioned with three (03) warnings and a fine of 28.0045 UIT for having incurred twenty (20) infractions of	21/04/2021

[7] Notified on 17 November 2017.

[8] Notified on 11 May 2018.

[9] Notified on 21 March 2019.

[10] Notified on 03 February 2020.

No.	Resolution	Resolved	Finality
	013-2021-SMV/1011	minor nature typified in Annex XIV, numeral 3, subparagraph 3.1 of the SANCTIONS REGULATIONS and in two (02) infractions of a minor nature typified in Annex I, numeral 3, subparagraph 3.1, of the NEW SANCTIONS REGULATIONS, for failing to submit periodic information within the term established by the applicable regulations referred to interim financial information and management report.
	Deputy Superintendent Resolution SMV No. 060-2021-SMV/1012	Autoplan Empresa Administradora de Fondos Colectivos S.A. is sanctioned with a fine of 18.3345 UIT for having incurred twelve (12) infractions of a minor nature typified in Annex I, numeral 3, subparagraph 3.1, of the SANCTIONS REGULATIONS, for failing to submit periodic information within the term established by the applicable regulations.	20/01/2022
	Deputy Superintendent Resolution SMV No. 003-2022-SMV/1013	Autoplan Empresa Administradora de Fondos Colectivos S.A. is sanctioned with four (04) UIT for having incurred one (01) infraction of a serious nature typified in Annex XIV, numeral 2, subparagraph 2.6 of the Sanctions Regulations, for granting loans to third parties exceeding the limit established by the regulations.	18/03/2022

40. With regard to recidivism for the commission of the same infraction, the final sanction imposed by the SMV within 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 aforementioned term, for the commission of the same infraction under analysis, in the present administrative sanctioning procedure, therefore recidivism is not configured;

41. 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 rules that regulate the collective funds system and in that sense, of the rules relating to the rights of the members, as well as the rules that oblige sending the account statements and the assembly schedules to the members in accordance with the provisions of the REGULATIONS and in the contracts it administers;

42. However, AUTOPLAN EAFC failed to comply with the provisions of article 70° of the REGULATIONS and clause 10, numeral 10.4, literal l) of the CONTRACT, since it failed to send the COMPLAINANT the account statements and the assembly schedules;

43. It should be added that in the present case the company, prior to the imputation of charges, the administrator has entered into the TRANSACTION on 11 August 2022 with the COMPLAINANT, whereby AUTOPLAN EAFC undertook to grant the COMPLAINANT the sum of USD 4,155.04 (Four thousand

[11] Notified on 26 March 2021.

[12] Notified on 29 December 2021.

[13] Notified on 24 February 2022.

one hundred fifty-five with 04/100 US dollars). This sum is greater than the total amount of the contributions that would correspond to the COMPLAINANT under the CONTRACT;

44. Through the TRANSACTION the COMPLAINANT records its conformity with the refund made in its favor of the sum of US$4,155.04 (Four thousand one hundred fifty-five and 04/100 US dollars), the complainant acknowledging that said sum of money satisfies in its entirety any economic claim, with respect to the facts raised in its complaint;

45. With regard to the 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 the members or potential members in the collective funds system;

46. As regards the illicit benefit resulting from the commission of the infractions, it must be noted that it has not been proven that AUTOPLAN EAFC has obtained a benefit that bears a direct relation to the infractions under analysis in the present administrative procedure;

47. With regard to 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, on the basis of the facts set forth by the COMPLAINANT in the complaint filed against the administering company, therefore the probability of detection of the infraction was low;

48. On the seriousness of the damage to the public interest and/or protected legal interest, in the present case it has not been possible to prove that the action of AUTOPLAN EAFC in the commission of the infraction under analysis in the present sanctioning procedure has caused determinable damage to the public interest;

49. However, a protected legal interest has been affected, consisting of the protection of the member, since AUTOPLAN EAFC has failed to comply with the obligation to provide periodic information to the member. The breached obligation has the purpose of preventing the impairment of the interests of the members, in particular their trust in the System, since the sending of the account statements allows the former to verify the detail of their contributions based on the quotas paid, the administration expenses charged by the administering company and to carry out the control of their payments made on a monthly basis, as well as the other information established in Annex 8 of the REGULATIONS. Likewise, it should be noted that the fact that the COMPLAINANT was not informed about the assembly schedules did not allow him to know the date of the regular assemblies corresponding to the CONTRACT from August 2020 to June 2022, so he could not have participated in them properly, nor exercise his contractually agreed rights, such as the right to submit auction proposals, even considering that the associate would have been included in the draws made at the assemblies;

50. On the other hand, considering that collective fund management companies have the obligation to act in strict compliance with the regulations applicable to them, such as the provisions established in the CONTRACT and REGULATIONS, in protection of the collective fund system, the violation of said regulations affects the legal interest related to market integrity, that is, the collective fund system, and especially affects the trust of associates or potential associates in the collective fund system;

51. Regarding the existence or not of intentionality in the conduct of the offender, it must be specified that no intentionality has been verified in the conduct of AUTOPLAN EAFC with respect to the infractions under analysis;

52. In addition to the foregoing, it is appropriate to analyze the exculpatory and mitigating circumstances of liability established in article 257 of the TUO OF THE LPAG, as well as the mitigating and exculpatory conditions of liability established in articles 26 and 27 of the SANCTIONS REGULATIONS;

53. Therefore, in accordance with the provisions of article 257, numeral 1 of the TUO OF THE LPAG and article 27 of the SANCTIONS REGULATIONS, it is not observed that in the present case any of the assumptions constituting exculpatory conditions of liability has been configured;

54. With regard to the voluntary declaration of the commission of the infraction and the contribution of the offender to its clarification, established in article 257, numeral 2, subparagraph a) of the TUO OF THE LPAG and in article 26, literals a) and b) of the SANCTIONS REGULATIONS, it must be indicated that AUTOPLAN EAFC did not present defenses, therefore, it has not expressly acknowledged the commission of the infraction under evaluation, nor has it contributed to its clarification. However, considering the sanction criteria analyzed, and in application of the Principle of Reasonableness contemplated in article 248, numeral 3 of the TUO OF THE LPAG, which states that the sanctions to be applied must be proportional to the non-compliance qualified as an infraction, in the present case the agreements adopted by AUTOPLAN EAFC and the COMPLAINANT through the TRANSACTION described as part of the circumstances of the commission of the infraction must be taken into account;

55. From the foregoing, it is concluded that AUTOPLAN EAFC has incurred in the commission of two (2) infractions qualified as minor in Annex XIII, numeral 3, subparagraph 3.7 of the SANCTIONS REGULATIONS, for which a sanction corresponding to infractions qualified as minor must be imposed on AUTOPLAN EAFC in accordance with article 39 of the SANCTIONS REGULATIONS;

56. 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.- Declare that Autoplan Empresa Administradora de Fondos Colectivos S.A. has incurred in two (02) infractions of a minor nature typified in Annex XIII, numeral 3, subparagraph 3.7 of the Sanctions Regulations, approved by SMV Resolution No. 035-2018-SMV/01, for failing to send the associate the account statements and assembly schedules corresponding to the signed collective fund management contract.

Article 2.- Sanction Autoplan Empresa Administradora de Fondos Colectivos S.A. with two warnings, as provided in article 1 of this Resolution.

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 or appeal, submitted to the same, within fifteen (15) business days counted from the day following its notification.

Article 4.- In the event that this resolution is not challenged by reconsideration or 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 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 by the provisions of article 14 of the Sanctions Regulations, approved by SMV Resolution No. 035-2018-SMV/01.

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

Register, communicate and publish.

Omar Gutiérrez Ochoa
Deputy Superintendent
Deputy Superintendency of Prudential Supervision