Deputy Superintendent of Prudential Supervision Resolution No. 011-2025-SMV/10 — SMV — PE

PERÚ Ministry of Economy and Finance

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

PERÚ Ministry of Economy and Finance

SMV
Securities Market
Superintendency
"Decade of Equal Opportunities for Women and Men" "Year of recovery and consolidation of the Peruvian economy" Electronically signed document within the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and the authorship of the signature(s) can be verified at https://apps.firmaperu.gob.pe/web/validador.xhtml
2. By writing presented to the Securities Market
Superintendency (SMV) on June 16, 2022, the COMPLAINANT 1 filed a complaint 2 against Banco BBVA Perú (hereinafter, BANCO BBVA) and against BBVA Asset Management S.A. SAF (hereinafter, BBVA SAF), for alleged non-compliance with the regulations governing the securities market;
3. With Letter No. 3221-2022-SMV/10.3, notified to
BBVA SAF on June 20, 2022 (hereinafter, the LETTER), the SAF was made aware of the complaint filed by the COMPLAINANT, in order to submit comments, as well as additional information and/or documentation that it considers pertinent;
4. By writing dated June 24, 2022, BBVA
SAF requested an extension of the deadline to submit the requested comments; which was granted by Letter No. 3446-2022-SMV/10.3;
5. With letter received on July 14, 2022, BBVA
SAF submitted the comments requested by Letter No. 3221-2022-SMV/10.3;
6. By Letter No. 5448-2024-SMV/10.3 notified
on December 3, 2024 (hereinafter, LETTER OF CHARGES), an administrative sanctioning procedure was initiated against BBVA SAF, imputing charges for some facts related to the COMPLAINANT's complaint;
7. On December 10, 2024, BBVA SAF requested an
extension for the submission of its defenses;
8. By Letter No. 5582-2024-SMV/10.3,
notified on December 12, 2024, the requested extension was granted to BBVA SAF;
9. By writing presented on December 26, 2024,
BBVA SAF submitted the defenses to the charges formulated through the LETTER OF CHARGES;
10. The charges and defenses formulated have been
the subject of evaluation by the General Superintendent of Prudential Compliance in the Report No. 144-2025-SMV/10.3, which has been submitted to the knowledge of this Deputy Superintendency;
11. In observance of the Principle of Due
Process contemplated both in Article IV, subsection 1, numeral 1.2 of the Preliminary Title, as well as in Article 248°, numeral 2, of the Single Text of the General Administrative Procedure Law No. 27444, approved by Supreme Decree No. 004-2019-JUS (hereinafter, TUO OF THE LPAG), by Letter No. 550- 2025-SMV/10, the administrative file to which this resolution refers was made available to BBVA SAF for its review;
II. MATTERS TO BE DETERMINED
12. In the present administrative procedure, at
the discretion of this Deputy Superintendency, it corresponds to determine the following:
a. Whether BBVA SAF incurred or not in an infringement provided for in Annex I, numeral 2, subsection 2.25 of the Sanctions Regulation, approved by SMV Resolution No. 035-

1 In the annex attached to this resolution, the full names of the natural persons to whom the designations used in this resolution belong are detailed, and likewise, if applicable, the email addresses. 2 File No. 2022025424

PERÚ Ministry of Economy and Finance

SMV
Securities Market
Superintendency
"Decade of Equal Opportunities for Women and Men" "Year of recovery and consolidation of the Peruvian economy" Electronically signed document within the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and the authorship of the signature(s) can be verified at https://apps.firmaperu.gob.pe/web/validador.xhtml 2018-SMV/01 (hereinafter, SANCTIONS REGULATION), by failing to comply with the conduct norm collected in Article 3, letter f), of the Regulation of Mutual Investment Funds in Securities and their Managing Companies, approved by CONASEV Resolution No. 068-2010-EF/94.01.1 and its amendments (hereinafter, REGULATION); b. Whether it corresponds or not to impose a sanction on BBVA SAF;
III. ANALYSIS
1. Of the applicable regulations
13. Article 3 of the REGULATION, in force at the time
the facts occurred, states:
"Article 3 General Conduct Standards
In the development of their activities, the managing company, officials, employees, promoters, members of the investment committee, External Manager, Distributor, custodian and placement agent, as well as any person who directly or indirectly is related to the managing company, must comply with the following general conduct standards, for which they will implement the procedures and controls necessary for their proper observance:
(...) f) Information to Participants and Investors: Inform, within the process of placement of quotas, about the profitability and risk attributes that characterize the investments of the mutual funds; likewise, offer to the participants of the mutual funds under their charge all information that may be relevant for the adoption of their decisions of subscription, redemption, transfer or swap, on equal conditions. All information to participants and investors must be clear, correct, precise, truthful, sufficient and timely. (...);
14. Regarding this, Articles 15, 40 and 85-A of the
REGULATION establish that;
"Article 15 Promoters
(...)
A direct promoter shall be understood as one who works directly for the managing company or the Distributor, regardless of their labor contracting regime, while an indirect promoter is one who provides services to the placement agents. (...)", "Article 40 Content of the Contract (...) The managing company is jointly and severally liable with its promoters and the promoters designated by the placement agents, for the improper acts of these, as well as for their omissions. (...)", "Article 85-A Promotion Promotion is the activity consisting of providing necessary and sufficient information for the taking of an informed investment decision. This activity includes advertising and advice.

PERÚ Ministry of Economy and Finance

SMV
Securities Market
Superintendency
"Decade of Equal Opportunities for Women and Men" "Year of recovery and consolidation of the Peruvian economy" Electronically signed document within the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and the authorship of the signature(s) can be verified at https://apps.firmaperu.gob.pe/web/validador.xhtml (...)",
2. Of the charge formulated
ON THE CONDUCT NORM RELATIVE TO THE INFORMATION PROVIDED TO PARTICIPANTS AND INVESTORS OF THE FACTS OCCURRED
15. By writing presented to the SMV on June 16
2022, the COMPLAINANT filed a complaint against BBVA SAF, in which, among others, it states that the information provided in the advertising used for the placement of participation quotas of the fund named "BBVA Global Income Fund of Funds FMIV", today named BBVA Strategic Global Distributive Fund of Funds FMIV, (hereinafter, FUND) would fail to comply with the regulations governing the Securities Market, as it was not truthful, sufficient and timely and would lead to confusion and error;
16. According to the account statements presented
by BBVA SAF, on January 29 and February 17, 2021, the COMPLAINANT and the PARTICIPANT, signed participation quotas of the FUND for an amount equivalent to USD 50,000.00 and USD 183,000.00, respectively; that is, a total of USD 230,000.00. Subsequently, on April 21, 2021, the PARTICIPANT redeemed the entirety of their quotas in the FUND;
17. Regarding their complaint, the COMPLAINANT
presented copies of emails and documents that they received before the first subscription of quotas in the FUND, and while they were a participant in the FUND, which are detailed below:
a) Email of December 4, 2020 at 13:01 hours, sent by the PROMOTER from their email address CORREOPRO, who signs as private banker of Banco BBVA Perú, entity that is the placement agent of the participation quotas of the mutual funds managed by BBVA SAF (hereinafter, PLACEMENT AGENT), addressed to the email address CORREODEN. Through this email, the PROMOTER informs the COMPLAINANT about various investment products, among which is the FUND, indicating the following:
"(...),
As discussed, I attach the following investment products for your review.
(...)
2) MUTUAL FUND GLOBAL INCOME
Fund that invests mainly in fixed income products, with greater focus on the US and Europe, Emerging Asia and a small position in Latin America. This fund incorporates US Government Bonds that are highly secure, High credit quality Corporate Bonds in quite solid companies and only a small part as diversification in high yield bonds to add to the fund's average. Benefits:

Quarterly rent payments.
Availability after 30 days to withdraw up to 100% without penalty.
Tax efficiency despite being an American Fund. (5% tax on profit and
not 30%)
Annual interest income starting from 2.6% -3.3% net of commission.
Additionally Pimco generates average revaluation between 1% - 2% over time according to historical data.

PERÚ Ministry of Economy and Finance

Quarterly rent payments.
Availability after 30 days to withdraw up to 100% without penalty.
Tax efficiency despite being an American Fund. (5% tax on profit
and not 30%)
Annual interest income starting from 2.6% -3.3% net of commission.
Additionally Pimco generates average revaluation between 1% - 2% over time according to historical data.
Attached sheet, product presentation and profitability table.
Any doubts, let me know to schedule a meeting.
(...)",

PERÚ Ministry of Economy and Finance

Access bonds from developed and emerging markets in a diversified manner
Invest in bonds from the prestigious manager PIMCO
(...)",

Additionally, in their complaint, the COMPLAINANT
presented advertising obtained from the website of Banco BBVA Perú, that is from the PLACEMENT AGENT, which was maintained until the date of their complaint, which is detailed below:
a) From June 14, 2022, 11:23 hours:
"BBVA Global Income FMIV: (...)
Benefits
Know the advantages of BBVA Global Income FMIV

Access bonds from Developed and Emerging Markets in a
diversified manner.
The fund will make rent payments on a quarterly basis.
Invest in international fixed income instruments managed through
mutual funds from the best managers worldwide
(...)", b) From June 14, 2022, 11:35 hours
"BBVA Global Income
Receive a rent payment on a quarterly basis.
Obtain attractive profitability in dollars without losing the availability of your
money.
(...)",

The COMPLAINANT indicates that in the advertising media such as emails and others it was not indicated that the investment made and
expressed in quotas would be reduced periodically and constantly as the distribution of quarterly benefits was received. It specifies that, in the advertising it is stated that investing in the FUND would have the benefit of "Receive Rent Payment on a quarterly basis" or also expressed as "Benefits: Quarterly rent payments", or other wordings, but payment of rents offered without expression of any limitation and/or affectation to their free receipt, use, enjoyment and disposal;
The COMPLAINANT explains that some investors require a "periodic rent distribution" type "periodic income" of free
disposition, use, enjoyment and disposal, but that does not directly affect their assets, their savings or capital. They add that the effect of the quarterly rent payment should not be distorted with the "mandatory scheduled redemption" scheme;
In light of the above, through the LETTER it was required to BBVA SAF to submit their comments regarding the facts complained about
referring to the performance of Banco BBVA Perú in its capacity as placement agent of the mutual funds under its management;

PERÚ Ministry of Economy and Finance

SMV
Securities Market
Superintendency
"Decade of Equal Opportunities for Women and Men" "Year of recovery and consolidation of the Peruvian economy" Electronically signed document within the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and the authorship of the signature(s) can be verified at https://apps.firmaperu.gob.pe/web/validador.xhtml
22. Regarding this, BBVA SAF states that with respect to
mandatory scheduled redemptions, the COMPLAINANT indicates that the concept "periodic rent" would not be concordant with a redemption, for which reason he believes that the information is not clear. However, BBVA SAF states that, from the review of numeral 5 of the Annex of the Participation Regulation of the FUND it is clear that mandatory scheduled redemptions are the distribution of benefits and that these consist of the flows generated by the instruments representing debt or liabilities in which the fund invests, retaining the respective capital gains tax;
23. For the reasons stated, BBVA SAF adds, it is possible
to conclude that the information referring to the fact that the periodic rent would be delivered through mandatory scheduled redemptions and what such rent would consist of, was clearly detailed in the Annex of the Participation Regulation of the FUND. Likewise, it highlights the fact that the investor is always warned to read the Participation Regulation of the FUND, its Annex, the Simplified Prospectus and the Management Contract before making an investment decision and that, in addition, in several sections of the SIMPLIFIED PROSPECTUS it indicates to the investor that they must review the Participation Regulation for more detail;
24. BBVA SAF adds that the COMPLAINANT states
disagreement that the periodic rent be paid through mandatory scheduled redemptions. From their writing it could be understood that, in their opinion, they should be delivered without any type of impact on the FUND;
25. On this matter, BBVA SAF states that it is not
possible to deliver benefits without this being reflected in the FUND, as it seems the COMPLAINANT would have preferred, since the benefits received from the instruments in which the FUND invests belong to the FUND, it cannot be otherwise;
26. They add that, when a mutual fund receives
benefits from the investments in securities made, these benefits increase the assets of the mutual fund and are included in the quota value. Therefore, to proceed to distribute them to the participants, in other words, withdraw them from the assets of the fund for delivery to the investors, it is necessary to reduce the total assets of the mutual fund. In the case of the FUND, this is effected through mandatory scheduled redemptions, as informed in the Annex of the Participation Regulation of the FUND; OF THE INFRACTION THAT BBVA SAF WOULD HAVE COMMITTED
27. According to what is established in the regulations
exposed, the managing company, the placement agent and its promoters must comply with the general conduct standards in the development of their activities, for which they must implement the procedures and controls necessary for their proper observance;
28. One of these conduct norms establishes the
obligation to inform, within the quota placement procedure, about the profitability and risk attributes that characterize the investments of the mutual funds; as well as to offer to the participants of the funds under their charge all the information that could be relevant for the adoption of their decisions of subscription, redemption, transfer or swap on equal conditions. Likewise, it is provided that all information provided to participants and investors must be clear, correct, precise, truthful, sufficient and timely;

PERÚ Ministry of Economy and Finance

3 https://dle.rae.es/confundir

PERÚ Ministry of Economy and Finance

SMV
Superintendencia del Mercado de Valores
“Decenio de la Igualdad de Oportunidades para Mujeres y Hombres” "Año de la recuperación y consolidación de la economía peruana" Documento electrónico firmado digitalmente en el marco de la Ley N° 27269, Ley de Firmas y Certificados Digitales, su Reglamento y modificatorias. La integridad del documento y la autoría de la(s) firma(s) pueden ser verificadas en https://apps.firmaperu.gob.pe/web/validador.xhtml
1) The amount to be distributed as mandatory scheduled redemption shall be composed of the flows generated by the debt instruments or liabilities in which the fund invests, with the respective capital gains tax withheld. These instruments are subject to the risks detailed in paragraph 6 of this Annex of the Regulation, so under certain circumstances the payment of periodic income may not be made or may consist of part of the invested capital.
2) Payment to participants shall be made by credit to the bank account indicated by the participant in the subscription request.
3) Payments of mandatory scheduled redemptions will be communicated to participants through the medium selected in the Administration Contract for the sending of account statements.
4) For the participant to receive the distribution of benefits, they must hold participation in the fund until the cutoff date, which will be 2 days before the day assigned for the quota value for the mandatory redemption corresponding to the benefit payment. In the event that a partial redemption is made on the cutoff date, if the participant's quota balance is less than the number of quotas of the mandatory redemption, the participant will not receive the distribution of benefits. In the case of total redemption and subscriptions on the cutoff date, the participant will not receive the distribution of benefits.
5) Redemptions other than mandatory scheduled redemptions may be made on the benefit distribution payment date, subject to the Redemption Commission. In the case of subscriptions made on the benefit distribution payment date, they will not be considered for the purposes of the distribution."
56. Therefore, based on the above, BBVA SAF concludes that with the arguments developed, the PROMOTER and the PLACEMENT AGENT did not provide confusing information, nor information that induced error in the participant, because no other contradictory phrases or phrases that induce error were included in the same text of the FUND's advertising. The PLACEMENT AGENT and the PROMOTER complied with the advertising regulations established in the REGULATION;
Regarding compliance with what is established by article 40-A of the REGULATION
57. BBVA SAF indicates that the SMV argues that, although a participant or potential participant must review all information provided by the management companies during the quota placement process such as the Simplified Prospectus, Participation Regulation and its Annex and the presentations prepared by the management company, the information as a whole must be coherent and precise, and not contain imprecisions such as those observed in the present case, given that the PLACEMENT AGENT and the PROMOTER had informed the COMPLAINANT via emails that the Fund would pay quarterly rents without specifying that this benefit payment would be made in the form of mandatory scheduled redemptions, as stated in paragraph 5 of the Annex of the Participation Regulation;
58. Regarding this, the administrator reiterates what was stated previously and indicates that the information provided to the PARTICIPANT regarding the payment of periodic rent was not only precise - as it constitutes the investment objective of the FUND as stated in the Annex and Simplified Prospectus - but also truthful and timely because it was made available to the Participant before they subscribed to the Mutual Fund Administration Contract and made their first subscription to the Fund;
59. In relation to this point, BBVA SAF points out that it is also proven through the respective emails that the PLACEMENT AGENT and the PROMOTER acted in full compliance with what is established by article 40-A of the REGULATION, which states:
“Article 40-A.- Means of Contracting
The contract referred to in article 40 must be celebrated through physical, electronic, telematic or other analogous means, and must be signed through handwritten, electronic or digital signatures. The management company must deliver or make available to the participant a copy of the contract together with the documents required by the Regulation before the first subscription, transfer or transfer, as applicable. (...)” Underline added;
60. Based on this, the administrator indicates that it is indisputable that both the PLACEMENT AGENT and the PROMOTER sent information to the Participant within the framework of what is established by the REGULATION; and, therefore, of the Internal Conduct Norms of BBVA SAF; therefore, it argues that the information as a whole is not imprecise or contradictory, but complementary and that the PLACEMENT AGENT and the PROMOTER complied with sending the Participant access to the Annex and Simplified Prospectus of the FUND so that the PARTICIPANT could complement the information on the form of benefit payment, which in its argumentation was perfect and clearly detailed in the Annex;
Regarding INDECOPI's position on the duty of suitability in information on mutual funds;
61. In principle, BBVA SAF indicates that when the REGULATION establishes the obligation of promoters to warn investors to inform themselves about the characteristics of the fund in the Annex and Simplified Prospectus, it transfers that responsibility to investors so that they act sensibly and adopt an informed investment or disinvestment decision. The same purpose is pursued when article 40 of the REGULATION establishes as minimum content of the Mutual Fund Administration Contract that “f) Indication that the incorporation of the participant into the mutual fund implies their full acceptance and submission to the simplified prospectus, participation regulation and other rules that regulate its functioning”;
62. Under this premise, it should not be considered that it is possible to sanction a management company that complies with what is established in the Regulation for the promotion of mutual funds because it subscribes to the Mutual Fund Administration Contract with a capable investor, simply because the investor and participant do not comply with reading said documents;
63. In this sense, the administrator mentions that it is pertinent to expose the position of the Consumer Protection Commission of INDECOPI in administrative proceedings followed against management companies of mutual funds in which it pronounces on the duty of information and duty of suitability of financial services, as detailed below;
a. Final Resolution No. 2924-2017/CC1 regarding File No. 406-2017/CC1 4, in the framework of the complaint of a mutual fund participant against a bank as placement agent and Interfondos S.A. SAF for having induced her to error in the placement of a mutual fund:

4 https://servicio.indecopi.gob.pe/buscadorResoluciones/proteccion-consumidor.seam

PERÚ Ministerio de Economía y Finanzas

5 https://servicio.indecopi.gob.pe/buscadorResoluciones/proteccion-consumidor.seam

PERÚ Ministerio de Economía y Finanzas

6 Article 087°.- INFORMATION TO INCLUDE IN ADVERTISING (...)
Additionally, without prejudice to what is stated in the previous article, all advertising must consider the following:
a) A highlighted note with the following phrase:
"Inform yourself about the essential characteristics of the investment in (indicate denomination of the mutual fund / indicate "the mutual funds managed by - name of the management company"), which are contained in the simplified prospectus and Participation Regulation."

PERÚ Ministerio de Economía y Finanzas

SMV
Securities Market
Superintendence
"Decade of Equal Opportunities for Women and Men" "Year of recovery and consolidation of the Peruvian economy" Electronically signed document within the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and modifications. The integrity of the document and the authorship of the signature(s) can be verified at https://apps.firmaperu.gob.pe/web/validador.xhtml specify that they are in the form of redemptions; that is, in the process of placing the shares, the care and diligence was not taken to avoid using expressions in advertising that generate false expectations among those to whom such advertising reached, including the COMPLAINANT, who could have influenced their decision to invest or maintain their investment in the FUND;
86. Regarding the defense, referring to the fact that the PLACEMENT AGENT
and the PROMOTER acted in full compliance with what is established by
Article 40-A
7 of the REGULATIONS, we must indicate that the charge formulated has not questioned whether the PROMOTER did or did not deliver to the COMPLAINANT a copy of the contract, Annex to the Participation Regulations and Simplified Prospectus before making the first subscription, it being necessary to recall that what has been charged as a case is the information provided to the COMPLAINANT and potential participants both through the website and with the observed emails, so the affirmation by BBVA SAF referring to the fact that by complying with the aforementioned Article 40-A it also complied with the Internal Conduct Norms is not valid and therefore lacks merit;
87. With respect to the fact that the information as a whole
is not imprecise or contradictory, but complementary, it should be noted that complementary is the information regarding the tentative dates for benefit payments, the method of communication to participants of these tentative dates, the cutoff dates, between other operational aspects, but the indication that quarterly rent payments will be made in the form of mandatory scheduled redemptions is a clear and precise information, which is not observed in the emails and website advertising;
88. As for the argument related to the cases
cited by BBVA SAF where, according to its claim, the position of the Consumer Protection Commission of INDECOPI is recorded in administrative procedures where it evaluated the duty of suitability in information about mutual funds (referring to the fact that by signing the contract or simplified prospectus or terms and conditions, the client was informed clearly and truthfully that Interfondos was the administrating company, in the first case; and that there was a penalty for redeeming their funds before the established deadline, in the second), and that BBVA SAF should not be sanctioned since in the present case it complied with letter f) of Article 40 8 of the REGULATIONS, insofar as when the REGULATIONS establish the obligation of the promoters to warn investors to inform themselves about the characteristics of the

7 Article 40-A°.- MEANS OF CONTRACTING
The contract referred to in Article 40 must be celebrated through physical, electronic, telematic or other analogous means, and must be signed through handwritten, electronic or digital signatures. The administering company must deliver or make available to the participant a copy of the contract together with the documents required by the Regulations before the first subscription, transfer or rollover, as applicable. The delivery or making available of the contract must be carried out by physical or electronic means, provided that in the latter case its reading, printing, conservation and reproduction without changes is allowed. In the case that electronic means are used to provide the participant with the contractual documents, the obligation contained in this paragraph shall be understood as fulfilled with the record of sending or making them available. The means used for the delivery or making available of the documents indicated in the preceding paragraph, must be informed to the participant. 8 Article 040° .- CONTENT OF THE CONTRACT (...) This contract must contain as a minimum the following information:
(...) f) Indication that the incorporation of the participant into the mutual fund implies their full acceptance and submission to the simplified prospectus, Participation Regulations and other rules that regulate its operation;

PERU Ministry of Economy and Finance

SMV
Securities Market
Superintendence
"Decade of Equal Opportunities for Women and Men" "Year of recovery and consolidation of the Peruvian economy" Electronically signed document within the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and modifications. The integrity of the document and the authorship of the signature(s) can be verified at https://apps.firmaperu.gob.pe/web/validador.xhtml fund in the Annex to the Participation Regulations and Simplified Prospectus, transfers that responsibility to investors so that they act sensibly and adopt an informed investment or divestment decision;
89. Regarding this, we specify again that in
the present sanctioning procedure the fact of the information provided to the COMPLAINANT and potential participants contained in the Annex of Participation Regulations and Simplified Prospectus or in the respective contract is not questioned, or whether
Article 40 of the REGULATIONS was complied with or not. It should be indicated that what has been
charged as a case is the information provided in the advertising of the FUND for the placement of the respective shares, which is not in accordance with the content of the Annex to the Participation Regulations and Simplified Prospectus since all the information as a whole must be clear, precise and complete to maintain coherence and not lead to confusion;
90. It must also be added that BBVA SAF in its
argument starts from the fact that the cited information of the referred advertising was clear, precise and sufficient and that by signing the administration contract it took knowledge and acceptance of the complementary information established in the Annex to the Regulations Participation and Simplified Prospectus, however, it is appropriate to recall that in the present procedure the imprecise and insufficient advertising carried out prior to the subscription of the shares is questioned, not the fact itself of the implications of signing the contract and taking knowledge of the Annex to the Participation Regulations and Simplified Prospectus and therefore of accepting the terms of the same;
91. As for the two cases of the Commission of
Consumer Protection Commission of INDECOPI in administrative procedures followed against administering companies of mutual funds in which it pronounces on the duty of information and duty of suitability of financial services, it corresponds to point out that these are not applicable to the present case, since as has been reiterated on several occasions in the present analysis, the advertising carried out prior to the subscription of the shares is questioned, not the fact itself of the implications of signing the mutual fund administration contract and the submission to the terms and conditions of the commercial relationship between the client and the SAF, which are the two cases exposed by BBVA SAF;
92. In view of the above, it is concluded that BBVA
SAF has not disproven the charge imputed; and, consequently, it is noted that it has failed to comply with the conduct norm collected in Article 3, letter f), of the REGULATIONS, since the administering company, through its PLACEMENT AGENT and PROMOTER, informed continuously through emails and advertising, as part of the permanent information handled by the administering company during the process of placing the shares of the FUND, that one of the characteristics of the FUND was the payment of quarterly rents to its participants, but without specifying or clarifying that this distribution of benefits would be carried out in the form of mandatory scheduled redemptions, that is, with the reduction of the number of shares that each participant had subscribed, as described in the Annex to the Participation Regulations of the FUND;
93. Therefore, it is concluded that BBVA SAF has incurred
in one (1) infringement classified as serious, according to Annex I, numeral 2, clause
2.25 of the SANCTIONS REGULATIONS, according to which it constitutes an infringement: "Not having,
approving, implementing, nor complying with or modifying them without communicating them to the SMV, within the

PERU Ministry of Economy and Finance

9
"Article 248°.- Principles of the administrative sanctioning power (...)
3. Reasonableness.- The authorities must foresee that the commission of the sanctionable conduct does not result 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 infringement classified as an infringement, observing the following criteria that are indicated for the purpose of their graduation:
a) The illicit benefit resulting from the commission of the infringement; b) The probability of detection of the infringement; c) The gravity of the damage to the public interest and/or legal good protected; d) The economic damage caused; e) Recidivism, for the commission of the same infringement within the term of one (1) year from when the resolution that sanctioned the first infringement became firm. f) The circumstances of the commission of the infringement; and g) The existence or not of intent in the conduct of the offender".

PERU Ministry of Economy and Finance

SMV
Securities Market
Superintendence
"Decade of Equal Opportunities for Women and Men" "Year of recovery and consolidation of the Peruvian economy" Electronically signed document within the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and modifications. The integrity of the document and the authorship of the signature(s) can be verified at https://apps.firmaperu.gob.pe/web/validador.xhtml No. Resolution Resolved Firmness i Resolution of the Superintendence Deputy SMV No. 032-2017-SMV/10 10 BBVA SAF is sanctioned with a fine of 1 UIT, equivalent to S/
3850.00 (three thousand eight hundred and 00/100 Soles), for having
incurred in an infringement typified in Annex VII, section A), numeral 3, clause 3.5, of the Sanctions Regulation, for not complying with the regulations regarding the participation limits in the fund 12/06/2017 ii Resolution of the Superintendence Deputy SMV No. 046-2017-SMV/10 11 BBVA SAF is sanctioned with a reprimand for having incurred in two (02) infringements of a serious nature typified in Annex I, numeral 2, clause 2.11 of the Sanctions Regulation, for not complying with what is specifically provided by the SMV, in the exercise of its functions, regarding sending to the participants of the mutual fund to be absorbed a communication containing information on the most relevant aspects of the merger and indication on the deadline for redemption without application of commissions. 19/07/2017 iii Resolution of the Superintendence Deputy SMV No. 052-2017-SMV/10 12 BBVA SAF is sanctioned with a fine of eight (08) UIT in force at the moment of the commission of the infringement, equivalent to S/ 30 400.00 (Thirty thousand and 00/100 Soles) for having incurred in one (01) infringement of a serious nature typified in Annex I, numeral 2, clause 2.4, in two (02) serious ones typified in Annex VII, letter A, numeral 2, clauses 2.5 and 2.14; and, one (01) minor infringement typified
Annex I numeral 3, clause 3.6 of the Sanctions Regulation; for not
including in the accounting books the deposits and transfers made from the soles fund account, failing to comply with the dispositions on subscriptions of participations contained in the regulations, not registering as subscriptions the contributions received from a participant, and for having presented the special report, in incomplete form, respectively. 02/08/2017 iv Resolution of the Superintendence Deputy SMV No. 010-2018-SMV/10 13 BBVA SAF is sanctioned with a fine of 1.224 UIT equivalent to S/ 4 712.40 (Four thousand seven hundred twelve and 40/100 Soles) for having incurred in two (2) infringements of a minor nature typified in
Annex I, numeral 3, clause 3.1 of the Sanctions Regulation, for not
having complied with presenting occasional information within the term established in the applicable regulations 16/03/2018 v Resolution of the Superintendence Deputy SMV No. 007-2020-SMV/10 14 BBVA Asset Management S.A. Fund Administering Company is sanctioned with a fine of 1.6995 UIT, equivalent to S/ 6 898.43 (six thousand eight hundred ninety-eight and 43/100 Soles), for having incurred in two (02) infringements of a minor nature, typified in Annex I, numeral 3, clause 3.1 of the Sanctions Regulation, for not having complied with presenting occasional information within the term established by the applicable regulations.. 01/04/2020
99. With respect to recidivism for the commission of the
same infringement, that firm 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 BBVA SAF does not present sanctions within the term indicated above, for the commission of the same infringement subject of analysis, in the present administrative sanctioning procedure, so recidivism is not configured;

10 Notified on May 22, 2017.
11 Notified on June 28, 2017.
12 Notified on July 11, 2017.
13 Notified on February 23, 2018.
14 Notified on March 11, 2020.

PERU Ministry of Economy and Finance

SMV
Securities Market
Superintendence
"Decade of Equal Opportunities for Women and Men" "Year of recovery and consolidation of the Peruvian economy" Electronically signed document within the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and modifications. The integrity of the document and the authorship of the signature(s) can be verified at https://apps.firmaperu.gob.pe/web/validador.xhtml
100. With respect to the circumstances of the commission of
the infringement; it should be mentioned that BBVA SAF, in its capacity as a company supervised by the SMV, knows the regulations that regulate the securities market and, in that sense, the general conduct norms that it must comply with in the development of its activities, between which is the duty to provide information in a clear, precise, truthful, sufficient and timely manner to participants and potential participants. However, the administering company did not comply with the referred conduct norm by observing that in the process of placing shares of the FUND through the website of the PLACEMENT AGENT and emails from the PROMOTER, imprecise information was provided to potential participants and participants regarding the payment of quarterly rents without indicating that it would be carried out through mandatory scheduled redemptions. From the evaluation carried out, it was evident that the imprecise information was communicated through emails and website from December 4, 2020 to June 14, 2022, that is, for a period of approximately 18 months;
101. It should be taken into account that, although a participant must
review all the information and documentation provided by the administering company so that it adopts an investment decision, in some cases it could be observed that participants, guided by trust in the administering company and by the dynamism of investment decisions, adopt their decisions based on the main characteristics of the mutual fund; therefore, it is fundamental that the administering company provides clear and precise information both in emails, meetings, phone calls, among others, which must be coherent with the information contained in the documents delivered to the potential investor or participant, avoiding the delivery of imprecise, incomplete, contradictory or deceptive information;
102. It should be noted that the securities market is a
highly specialized market, which is why, for an administering company of funds to participate in it, it must be authorized by the regulator; and consequently, among others, it must have personnel duly trained, which allows it to fully comply with the general conduct norms during the development of its activities, which have as their fundamental objective the protection of the investor and the integrity of the market; otherwise, it would imply affecting said legal goods that are intrinsically necessary for the proper functioning and development of the securities market;
103. Regarding the economic damage caused and the
repercussion in the market, in the present case, it has not been evidenced that the infringement in which BBVA SAF has incurred has produced a concrete quantifiable damage in the market; that is, it has not been determined that it has affected in a concrete manner or caused economic damage to one or more investors, so it has not been evidenced that there was repercussion in the market;
104. Notwithstanding the above, it is appropriate to point
out that if it had had all the complete and coherent information as a whole that includes the conditions of the securities and the form of payment of profitability observed, it could constitute important information for the COMPLAINANT that could have influenced its decision to invest or divest, that is, in the decision to have acquired the shares of the FUND on January 29 and February 17, 2021 or to have divested before April 21, 2021. It should be indicated that the COMPLAINANT redeemed on April 21, 2021 the totality of its shares in the FUND after the first mandatory scheduled redemption was made on April 7, 2021;

PERU Ministry of Economy and Finance

Regarding the illicit benefit resulting from the commission of the infringement, it has not been proven in the present administrative sanctioning procedure that BBVA SAF obtained any illicit benefit as a result of having incurred the infringement under analysis;
Regarding the probability of detection of the infringement, it must be indicated that the facts constituting the infringement committed by BBVA SAF were evidenced when verifying compliance with the applicable regulations for the development of their functions, based on the facts exposed by the COMPLAINANT in the complaint filed by the latter against the managing society, so the probability of detection of the infringement was low;
As for the gravity of the damage to the public interest and/or the protected legal interest, in the present case it has not been possible to prove that the action of BBVA SAF in the commission of the infringement under analysis in the present sanctioning procedure caused determinable damage to the public interest;
Notwithstanding, it must be noted that according to the applicable regulations, managing societies must comply during the development of their activities with the general conduct rules set forth in article 3 of the REGULATIONS; likewise, the managing society must have personnel duly trained regarding compliance with said conduct rules, so that, in the present case, they provide clear, precise, and sufficient information to participants and potential participants regarding the funds under their administration;
Consequently, the transgression of said regulation affects the legal interest referred to the protection of the same, insofar as the fact that a fund managing society does not comply with the general conduct rules in the exercise of its activities affects the confidence that participants, potential participants, and the market in general may place in the securities market, affecting in turn its development and its impact as an alternative source of investment;
Regarding the existence or not of intent in the conduct of the offender, it must be specified that intent in the conduct of BBVA SAF regarding the infringement under analysis has not been verified;
In addition to the above, it corresponds to analyze the exempting and mitigating conditions of responsibility established in article 257 of the TUO OF THE LPAG 15, and in articles 26 and 27 of the SANCTIONS REGULATIONS;

15
“Article 257.- Exempting and mitigating conditions of responsibility for infractions 1.- The following constitute exempting conditions of responsibility for infractions:
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 this affects the aptitude to understand the infraction. d) Mandatory order from a competent authority, issued in the exercise of its functions. e) Error induced by the Administration or by confusing or illegal administrative provision. f) Voluntary remediation by the possible sanctioned party of the act or omission imputed as constitutive of administrative infraction, prior to the notification of the charges referred to in paragraph 3) of article 235. 2.- The following constitute mitigating conditions of responsibility for infractions:
a) If, once an administrative sanctioning procedure has begun, the offender recognizes their responsibility expressly and in writing.
In cases where the applicable sanction is a fine, it is reduced to an amount no less than half of its value.

PERÚ Ministry of Economy and Finance

With respect to this, in accordance with what is determined in article 257, paragraph 1 of the TUO OF THE LPAG and in articles 26 and 27 of the SANCTIONS REGULATIONS, it is not observed that in the present case any of the scenarios that constitute exempting or mitigating conditions of responsibility have been configured;
For its part, it must be indicated that BBVA SAF has not recognized the imputed infringement. Likewise, regarding the contribution of the offender to its clarification, it corresponds to point out that BBVA SAF has not provided further evidentiary means or arguments that allow clarifying the facts constitutive of the infringement, referred to the information provided by its promoters via the evaluated emails, limiting itself to presenting its defenses in order to disprove the commission of the infringement;
Based on the above, it is concluded that BBVA SAF has incurred the commission of one (1) infringement classified as serious, typified in Annex I, paragraph 2, subsection 2.25 of the SANCTIONS REGULATIONS, according to which it constitutes an infringement: “Not having, approving, implementing, nor complying with or modifying them without communicating them to the SMV, within the corresponding deadline, the conduct rules, the internal conduct rules, or code of conduct, in accordance with the regulations on the matter, or not approving a control procedure for said rules”, so it would correspond to impose a sanction in accordance with what is established in article 34 of the SANCTIONS REGULATIONS, which establishes that the serious infringement is sanctionable with a fine no less than twenty-five (25) and up to fifty (50) Tax Units – UIT or suspension of the operating authorization for up to twenty (20) days;
However, taking into account the analyzed sanctioning criteria, and in application of the Principle of Reasonableness contemplated in article 248, paragraph 3 of the TUO LPAG which states that the sanctions to be applied shall be proportional to the non-compliance classified as an infraction, it must be considered that regarding the infringement under charge, it has not been evidenced that this has produced a concrete, quantifiable repercussion or prejudice in the market. Likewise, it has been verified that BBVA SAF is not a recidivist regarding the infringement;
In that sense, this Adjunct Superintendence considers that it corresponds to impose on BBVA SAF a fine sanction applicable to minor infractions, in accordance with what is established in article 35 of the SANCTIONS REGULATIONS, for the infringement under evaluation in the present administrative sanctioning procedure;
Being in accordance with what is provided by article 32°, paragraph 16, of the Regulation of Organization and Functions of the SMV, approved by Supreme Decree Nº 216-2011-EF and its modifications;

RESOLVES:
Article 1º.- Declare that BBVA Asset Management S.A. SAF has incurred one (1) infringement classified as serious as established in Annex I, paragraph 2, subsection 2.25 of the Sanctions Regulation, approved by SMV Resolution N° 035-2018-SMV/01, due to the fact that it failed to comply with the conduct rule set forth in article 3, letter f), of the REGULATIONS, inasmuch as the managing society, through its Placement Agent and PROMOTER, continuously informed via emails and advertising, imprecise or unclear information regarding the distribution of benefits of the FUND.

Article 2º.- Sanction BBVA Asset Management S.A. SAF with a fine of 04 UIT, equivalent to S/ 17,200.00 (Seventeen thousand two hundred and 00/100 soles) for the commission of the infringement referred to in article 1° of this resolution.

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

Article 4º.- In the event that this resolution is not subject to challenge through reconsideration or appeal within the term of fifteen (15) business days of being notified and becomes final, it must be published on the Institutional Page of the SMV in the Unique Digital Platform of the Peruvian State, in observance of what is provided by paragraph 1, article 7° of the Policy on dissemination of normative projects, general character legal norms, early agenda and other administrative acts of the SMV, approved by SMV Resolution Nº 014-2014-SMV/01 and its modification, and by what is provided in article 14° of the Sanctions Regulation, approved by SMV Resolution N° 035-2018-SMV/01.

Article 5º.- Transcribe this resolution to BBVA Asset Management S.A. SAF.
Register, communicate, and publish.

Omar Gutiérrez Ochoa
Adjunct Superintendent
Adjunct Superintendence of Prudential Supervision

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