Superintendencia Adjunta SMV Resolution No. 001-2024-SMV/11

Lima, 10 January 2024

Summary: Sanction Aenza S.A.A. with a fine of 5 UIT for having incurred one (1) infraction of a serious nature, classified in subsection 2.10 of numeral 2 of Annex I of the Sanctions Regulation

Administered entity : AENZA S.A.A.
Subject
: Administrative sanctioning procedure of dual administrative instance administrative Main type : Subsection 2.10 of numeral 2 of Annex I of the Sanctions Regulation SERIOUS INFRACTIONS File No. : 2023041594

The Deputy Superintendent (e) of Market Conduct Supervision

WHEREAS:

Administrative file No. 2023041594, containing the administrative sanctioning procedure initiated by the General Intendancy of Market Conduct Compliance of the Superintendency of the Securities Market – SMV (hereinafter, the IGCC), against Aenza S.A. (hereinafter, the Issuer); as well as Report No. 1554-2023-SMV/11.2 (hereinafter, the Report); issued by the IGCC;

CONSIDERING:

I. Function and competence of the SASCM

1. That, administrative file No. 2023041594 contains the documentation and information regarding an administrative sanctioning procedure (hereinafter, PAS), which has been brought to the knowledge of the SASCM in observance of the exercise of the supervisory function and the sanctioning power of the Superintendency of the Securities Market - SMV established by the Single Concorded Text of its Organic Law, Legislative Decree No. 26126, and in the Single Ordered Text of the Securities Market Law, Legislative Decree No. 861, approved by

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Supreme Decree No. 020-2023-EF (hereinafter, TUO of the LMV)1; as well as by the provisions of the Sanctions Regulation, approved by SMV Resolution No. 035-2018- SMV/01 (hereinafter, Sanctions Regulation) and in articles 42 and 43 of the Regulation of Organization and Functions of the SMV, approved by Supreme Decree No. 216-2011-EF and its amendments (hereinafter, ROF of the SMV), in the sense that it is a specific function of the SASCM to impose sanctions in the first administrative instance for the commission of infractions whose compliance control corresponds to the referred Deputy Superintendency. Likewise, the SASCM has the powers to issue corrective measures aimed at reversing the situation altered by the commission of the infraction;

2. That, with respect to the charge subject of this PAS, two (2) administrative instances correspond to it, in accordance with article 15 of the Sanctions Regulation, and to the provisions of numeral 26 of article 12 of the ROF-SMV, which establish that the Superintendent of the Securities Market resolves appeals against resolutions issued in the first instance by the Deputy Superintendent of the SASCM, with the exception of single-instance procedures;

II. Facts, charge and defenses

2.1 Facts

3. That, it was evaluated whether the Issuer complied with timely presenting material facts;

2.2 Charge

4. That, as a result of said evaluation, by means of Official Letter No. 4507-2023-SMV/11.2 of 03 October 2023 (hereinafter, the Charge Letter), a charge was formulated against the Issuer for not having presented within the established term the material fact referring to the communication of what was resolved by Superintendent Resolution No. 065-2023-SMV/022, notified on 23 August 2023, which declared partially founded the appeal filed against Deputy Superintendency SMV Resolution No. 068-2021-SMV/11, which should have been presented that same day; however, it was not submitted as of the date of the imputation of the charge.

2.3 Defenses

5. That, by means of a brief presented on 17 October 2023, the Issuer presented its corresponding defenses, stating the following:

"By means of this brief and under the protection of subsection 1 of literal a) of article 26 of the Sanctions Regulation, being within the legal term for the presentation of defenses, we acknowledge our responsibility in the commission of the described infraction and, consequently, we request from your Intendancy the application of the

[1] By Supreme Decree No. 020-2023-EF, published on 10 February 2023 in the Official Gazette El Peruano, the Single Ordered Text of the Securities Market Law, Legislative Decree No. 861, was approved.

[2] With this resolution, the exhaustion of the administrative route has occurred.

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mitigating circumstance of responsibility for the reduction of fifty percent (50%) of the fine that the Intendencia could impose, if applicable. In this regard, we inform you that on the date [17 October 2023] we proceeded to report as a material fact the imposition of the aforementioned fine.”

6. That, the Single Ordered Text of the General Administrative Procedure Law, approved by Supreme Decree No. 004-2019-JUS (hereinafter, the TUO of the LPAG) 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. Likewise, numeral 3) of article 248 of the TUO of the LPAG, indicates the criteria regarding the graduation of the sanction: (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 final, (f) The circumstances of the commission of the infraction; and, (g) The existence or not of intentionality in the conduct of the offender;

7. That, the charge formulated, the defenses presented, and the criteria regarding the graduation of the sanction have been subject to evaluation in the Report, which has been brought to the knowledge of the SASCM;

8. That, in observance of the provisions of numeral 5 of article 255 of the TUO of the LPAG, by means of Official Letter No. 5629-2023-SMV/11 of 12 December 2023, the Report was sent to the Issuer, so that it may submit its arguments within the term of five (05) business days from notification, which to date have not been presented;

III. Issues to be determined

9. That, in the present PAS it corresponds to determine the following:

(i) Whether or not the Issuer incurred in the infraction indicated in the Charge Letter and Report.

(ii) Whether or not it corresponds to impose a sanction on the Issuer.

IV. Analysis

4.1 Applicable Regulations

10. That, article 30 of the TUO of the LMV states: “The registration of a certain security or issuance program entails for its issuer the obligation to inform the SMV and, if applicable, the respective stock exchange or entity responsible for the conduct of the centralized mechanism, of the material facts, including ongoing negotiations, about itself, the security and the offer made of it, as well as to disclose such facts in a truthful, sufficient and timely manner. The information must be provided to said institutions and disclosed as soon as the fact occurs or the issuer becomes aware of it, as the case may be”;

11. That, in the same sense, numeral 9.1 of article 9 of the Regulation of Material Facts and Reserved Information, approved by SMV Resolution No. 005-2014-SMV/01 (hereinafter, Regulation of Material Facts), states that “The Issuer must report its material fact as soon as such fact occurs or the Issuer becomes aware of it, and in no case beyond the day on which it has occurred or has been known (…)”

12. That, in this regard, it is appropriate to indicate that numeral 5.1 of article 5 of the Regulation of Material Facts and the last paragraph state the following:

“5.1. In the Annex that forms part of this Regulation, an enunciative list of facts, acts, agreements and decisions is included, which has the purpose of facilitating for the Issuer the identification, qualification and classification of the information that could qualify as a material fact. (…) Any reference to Annex in this article shall be understood as referring to Annex 1.”;

13. That, in accordance with numeral 33 of Annex 1 of the Regulation of Material Facts, the following may qualify as a material fact:

“33. Initiation and final result of judicial or arbitral processes and administrative procedures that may affect the patrimony or the business and activities of the Issuer.”;

14. That, the omission in the presentation of material facts is typified in subsection 2.10 of numeral 2 of Annex I of the Regulation of Sanctions, which states that it constitutes a serious infraction: “Not communicating material facts or not presenting audited individual or consolidated financial information, interim individual or consolidated financial statements, management report or special audit report and annual reports.”;

15. That, in accordance with article 34 of the Regulation of Sanctions, said infraction is sanctionable with a fine of no less than twenty-five (25) UIT and up to fifty (50) UIT, or suspension of the negotiation of securities for up to one (1) year;

4.2 Evaluation of the case

16. That, in relation to the defenses presented by the Issuer, the following must be indicated:

(i) The Issuer expressly acknowledges its responsibility for the commission of the infraction referred to in the present PAS in its defense brief.

(ii) In this regard, it corresponds to indicate that the voluntary declaration of acknowledgment of the infraction by the Issuer is reputed as a mitigating condition of responsibility, so that when the applicable sanction is a fine, it is reduced by fifty percent (50%) if the acknowledgment is presented within the term granted to present defenses, in accordance with numeral 1 of literal a) of article 26 of the Regulation of Sanctions, which will be considered at the time of the determination of the sanction.

17. That, consequently, the breaches have been accredited for not communicating within the established term the material fact referring to the communication of what was resolved by Superintendente Resolution No. 065-2023-SMV/02, notified on 23 August 2023 to the Issuer, which declared partially founded the appeal filed against the Superintendencia Resolution

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Attached SMV No. 068-2021-SMV/11, which should have been submitted that same day, so it is appropriate to determine the sanction in accordance with the principle of reasonableness;

V. Determination of the Sanction

18. That, the breaches in the communication of material facts are typified in subsection 2.10 of numeral 2 of Annex I of the Sanctions Regulation, which establishes that it constitutes a serious infraction: “2.10 Not communicating material facts or not presenting audited individual or consolidated financial information, interim individual or consolidated financial statements, management report or special audit report and annual reports.” (Underline added);

19. That, regarding the applicable sanctions, article 34 of the Sanctions Regulation states that the commission of serious infractions are punishable with a fine of no less than twenty-five (25) UIT and up to fifty (50) UIT; among others3;

20. That, in order to determine the sanction to be imposed on the Issuer, the sanction criteria established in article 344 of the TUO of the LMV, numeral 3) of article 248 of the TUO of the LPAG and the provisions of article 25 of the Sanctions Regulation (hereinafter, Sanction Criteria) must be taken into account;

SANCTION CRITERIA

21. That, in relation to the severity of the damage to the public interest and/or protected legal interest, the presentation of truthful, sufficient and timely information in the market has the purpose of allowing investors to adopt investment decisions adequately informed. In this way, investors are protected and the asymmetry in access to information is reduced, therefore, the protected legal interest is the transparency of the securities market. In that sense, the Issuer has violated the transparency of the securities market and, therefore, has generated damage to the public interest;

22. That, in relation to the economic harm caused and its repercussion in the market, it is considered that although by their nature, both criteria cannot be reliably measured; it can be recognized that the breach committed by the Issuer has a negative repercussion in the market, since the analyzed material fact has not been disseminated in a timely manner. However, it should be mentioned that to date, there has been no claim or complaint from any shareholder and/or investor against the Issuer, so it can be affirmed that it has not been evidenced that the breach has produced a quantifiable harm, understood as an economic damage caused to one or several investors;

23. That with respect to the offender's antecedents,

[3] “Article 34.- SANCTIONS FOR SERIOUS INFRACTIONS For the commission of serious infractions, one of the following sanctions is imposed on the offender: a) Fine of no less than twenty-five (25) UIT and up to fifty (50) UIT; b) Suspension of the negotiation of securities for up to one (1) year or of the placement of the public offering; c) Suspension of the authorization of operation or of the representatives of the agent companies, for up to twenty (20) days; and, d) Suspension of the persons referred to in subsection i) of article 343 of the LMV and the corresponding regulations, for up to thirty (30) days.”

subsection a) of article 25 of the Sanctions Regulation establishes that the offender's antecedents are the sanctions imposed by the SMV and that became final within the four (04) years prior to the moment of the commission of the infraction to be sanctioned. Likewise, it states that the commission of the same infraction in the year prior to the infraction to be sanctioned is not considered antecedents. In application of said criterion, it has been verified that the Issuer has sanction antecedents as evaluated in the Report;

24. That, in relation to recidivism for the commission of the same infraction, subsection b) of article 25 of the Sanctions Regulation establishes that the final sanction imposed by the SMV within the term of one (01) year prior to the commission of the infraction to be sanctioned is taken into account. In this regard, it has been verified that there is no recidivism on the part of the Issuer, according to what was evaluated in the Report;

25. That, regarding the circumstances of the commission of the infraction, it has been verified that the Issuer had not sent the material fact about what was resolved by Superintendente Resolution No. 065-2023-SMV/02, at the time of the imputation of the charge, a fact that should have been presented on 23 August 2023. Subsequently, at the time of the presentation of its defenses (17 October 2023), the Issuer communicated as a material fact what was resolved by Superintendente Resolution No. 065-2023-SMV/02 (File No. 2023043591). Although there has been a delay of fifty-five (55) days in the presentation of the material fact about what was resolved by Superintendente Resolution No. 065-2023-SMV/02, for the purposes of the sanction, the Issuer's willingness to comply with the obligation to present this material fact will be taken into account.

26. That, regarding the illicit benefit resulting from the commission of the infractions, it must be noted that in the present case, there are not sufficient elements to indicate that the Issuer obtained an illegal benefit as a consequence of the commission of the infraction under evaluation;

27. That, regarding the existence or not of intentionality in the conduct of the offender, it must be noted that there are not sufficient elements to indicate that the Issuer acted with intent in the commission of the infraction, so the present criterion is not met. However, it is necessary to indicate, despite the fact that there are no indications of the Issuer's conduct regarding its intentionality, if it is affirmed that the Issuer's conduct was negligent, it did not act with the required diligence before previously known obligations;

28. That, in relation to the probability of detection of the infraction, it must be noted that the failure to present periodic or occasional information is verified through internal control systems, so it is considered that for this type of non-compliance, the probability of detection is high, as it results from the supervision work of the SMV;

29. That, for the purposes of determining the sanction and considering the circumstances of the commission of the infraction and the Sanction Criteria developed in this Resolution, account must be taken of the provisions of the last paragraph of article 25 of the Sanctions Regulation, which establishes: “When, from the evaluation of the aforementioned criteria, it is observed that there is no proportionality between the sanction to be imposed and the imputed facts, by exception and

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by reasoned resolution, a sanction corresponding to a lower classification than the one provided may be imposed.”;

30. That, in the present case, it is noted that from the evaluation of the criteria developed above, and since the Issuer presented the material fact of importance of this PAS, there would be no proportionality between the sanction that would correspond to be imposed for the infraction and the imputed fact (serious infraction ranging from 25 to 50 UIT), so by exception, in attention to the proposal of the Report, this Deputy Superintendence is of the opinion that it corresponds to impose a sanction corresponding to a lower classification than the one provided, that is, to impose a sanction corresponding to minor infractions;

31. That, in attention to the Sanction Criteria indicated above, the analysis contained in the Report and the evaluation carried out by this Deputy Superintendence, it is considered that the Issuer must be imposed a fine amounting to 10 UIT4 equivalent to S/ 49,500.00 (Forty-Nine Thousand Five Hundred and 00/100 Soles), an amount that will be reduced by the acknowledgment of the infraction made by the Issuer in its defenses;

32. That, as previously indicated, the Issuer stated in its defenses that it assumed its responsibility expressly and in writing for the infraction subject to charge, so in application of the fifty percent (50%) reduction, by virtue of the acknowledgment of responsibility, the Issuer must be imposed a total fine of 5 UIT equivalent to S/ 24,750.00 (Twenty-Four Thousand Seven Hundred Fifty and 00/100 Soles);

In accordance with the provisions of numerals 13 and 36 of article 43 of the Regulation of Organization and Functions of the SMV, approved by Supreme Decree No. 216-2011-EF and its amendments;

RESOLVES:

Article 1.- Declare that Aenza S.A.A. has incurred in one (1) infraction of a serious nature, typified in subsection 2.10 of numeral 3 of Annex I of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01, for not having presented within the established term the material fact of importance regarding what was resolved by Superintendent Resolution No. 065-2023-SMV/02.

Article 2.- Sanction Aenza S.A.A. with a fine of 5 UIT equivalent to S/ 24,750.00 (Twenty-Four Thousand Seven Hundred Fifty and 00/100 Soles), for the provisions of article 1 of this Resolution.

Article 3.- This Resolution does not exhaust the administrative route, and it may be challenged before this Deputy Superintendence of Supervision of Market Conducts through the filing of a reconsideration or appeal, administrative remedies recognized in article 218 of the Single Ordered Text of Law No. 27444, General Administrative Procedure Law, approved by Supreme Decree No. 004-2019-JUS, within a term of fifteen (15) business days counted from the day following its notification, as it is a double-instance administrative procedure. If this Resolution is not challenged, it may avail itself of the corresponding sanction reduction regime.

[4] Value of the UIT (2023): S/ 4,950.00 (Supreme Decree No. 309-2022-EF).

Article 4.- In case this Resolution is not subject to challenge, it must be published in the “Institutional Page of the SMV on the Single Digital Platform of the Peruvian State for Citizen Orientation (www.gob.pe/smv)”, in observance of the provisions of numeral 1 of 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 the last paragraph of article 14 of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01.

Article 5.- Transcribe this Resolution to Aenza S.A.A.

Carlos Rivero Zevallos
Deputy Superintendent (e)
Deputy Superintendency of Market Conduct Supervision

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Resolution No. 001-2024-SMV/11 of the Deputy Superintendency of Market Conduct Supervision