Superintendencia Adjunta SMV Resolution No. 003-2024-SMV/10

Lima, 19 January 2024

Summary: Pandero S.A. EAFC is sanctioned with a reprimand for having incurred in one (1) serious infraction classified in Annex XIII, numeral 2, subsection 2.16 of the Sanctions Regulation, for failing to comply with the provisions of the collective funds administration contract entered into with the associate.

Administrated parties
:
Pandero S.A. EAFC
Subject
:
Administrative sanctioning procedure
File No.: 2023017599

The Deputy Superintendent of Prudential Supervision

VIEWS:

Administrative file No. 2023017599, Report No. 985-2023-SMV/10.3, issued by the General Intendancy of Prudential Compliance, as well as the defenses and arguments presented by Pandero S.A. EAFC; and,

CONSIDERING:

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

I. Facts

2. On 10 July 2022, Mrs. Raquel Lidia Vivian Pinto (hereinafter, MRS. VIVIAN) entered into with Pandero S.A. EAFC (hereinafter, PANDERO) two (2) contracts called “Collective Funds Administration Contracts of Pandero S.A. EAFC for Acquisition of Real Estate” No. 8119-328-13 and 8119-327-11, group No. 8119, Program Pandero C-5, for the acquisition of two purchase certificates, each, for US$ 40,776.69 (forty thousand seven hundred seventy-six with 69/100 US dollars) (hereinafter, CONTRACTS), whose model was approved by Resolution of the General Intendancy of Supervision of Entities No. 049-2019-SMV/10.2 dated 7 June 2019;

3. On 13 September 2022, MRS. VIVIAN filed a complaint with the SMV against PANDERO in which she states that, on 4 August 2022, she sent a letter to PANDERO requesting the annulment of the CONTRACTS, detailing that on 10 July 2022, MRS. VIVIAN attended the real estate fair located at Jockey Plaza, where she met with a sales executive, who explained the work modality, making the decision to opt for PANDERO. Likewise, Mrs. VIVIAN states that the signing of the CONTRACTS was done virtually, without having been previously provided for a detailed reading thereof;

4. For her part, MRS. VIVIAN specifies that the decision she made was based on the fact that the sales advisor told her that, if at some point she would have to withdraw for different reasons, she could recover the entirety of her money. Likewise, she was told that PANDERO's fund was similar to a savings where her money could be returned to her if required; however, she states that in the communication important points would have been omitted such as the fact that after the first assembly, she would be subject to penalties or the amount of registration and capital installments would be discounted;

5. MRS. VIVIAN states that, between 10 and 11 July 2022, she deposited the sum of USD 3,729.34 (three thousand seven hundred twenty-nine with 34/100 US dollars), corresponding to registration and installment payments;

6. On the other hand, the complainant states that on 04 August 2022 she requested the annulment of the CONTRACTS, as well as the return of her contributed money; however, she states that on 12 August 2022, she received as a response from PANDERO that the return of her contributions must adhere to the stipulations in the contract clauses; therefore, on 17 August 2022, through a notarial letter, she again requested the annulment of her contract and the return of her contributions; however, on 23 August 2022, PANDERO informed her through a letter that her request was not admissible;

7. MRS. VIVIAN attaches as part of her complaint:

a) Notarial letter dated 4 August 2022, sent by MRS. VIVIAN to PANDERO, in which she requests the annulment of the contract and return of her contributions, detailing the facts indicated in the complaint;

b) Letter dated 12 August 2022, addressed to MRS. VIVIAN, in which PANDERO states that the contract cannot be contravened, as it is law between the parties and, likewise, informs her that her request for return of contributions must adhere to the stipulations in the contract;

c) Notarial letter dated 17 August 2022, addressed to PANDERO, in which the complainant communicates her decision to terminate the CONTRACTS, for strictly personal reasons and requests the return of USD 3,731.70 US dollars;

d) The first side of the letter dated 23 August 2022, sent by PANDERO to MRS. VIVIAN, in which a response is given to the letter dated 17 August 2022 and, likewise, informs that the complainant's request is not admissible;

e) Notarial letter dated 22 August 2022, sent by MRS. VIVIAN to PANDERO, in which the complainant reiterates her decision to annul and terminate the CONTRACTS and indicates that despite having communicated such decision, she has been notified again to pay her second installment; likewise, she states that the sum of USD 3,731.70 US dollars must be returned to

her favor, which were paid at the time of signing the annulled and terminated CONTRACTS;

f) Letter dated 24 August 2022, addressed to MRS. VIVIAN, through which Pandero informs that the complainant's request is not admissible;

8. Through Official Letter No. 4771-2022-SMV/10.31, notified on 20 September 2022 (hereinafter, OFFICIAL LETTER), the complaint filed by Mrs. VIVIAN was forwarded to PANDERO so that it may submit the corresponding comments, as well as the required documentation and additional information it deems pertinent;

9. On 30 September 2022, PANDERO submitted a response letter and documentation in relation to the complaint filed. The administering company stated that LADY VIVIAN signed the CONTRACTS, for the purpose of acquiring the Purchase Certificates for the sum of USD 40,776.69 US dollars; it also states that said CONTRACTS are in the status of not awarded and terminated and that as of 30 September 2022, the CONTRACTS did not participate in the quarterly draw of terminated contracts since they were terminated after assembly number 3;

10. In its response, PANDERO submitted the following documentation that is in the file:

a) Copy of the email dated 10 July 2022, sent to Mrs. Vivian, to the email address VIVIAN_RAQUEL@hotmail.com, at 16:14 hours, with subject “Raquel Lidia, you are one step away from achieving your goal with Pandero”, in which it is observed that three files with pdf extension are attached, named: (i) “Proforma N° 1269878 RAQUEL LIDIA VIVIAN PINTO_2750183013057099761”; (ii) “proforma_1269878_C5-Pandero Inmuebles_contrato_sin_valor”; and, (iii) “proforma_1269878_tarifario”;

b) Copy of the document “Proforma C5 - N° 5 1269878” dated 10 July 2022;

c) Copy without value of the collective funds administration contract of Pandero S.A. EAFC for acquisition of real estate identified with N° C5 – 00001;

d) Copy of the document “Important points I should know”;

e) Copy of the document “Tariff of Additional Services”;

f) Copy of the associate's booklet and collective funds administration contract N° 8119-328-13, which has the digital signature of LADY VIVIAN;

g) Copy of the associate's booklet and collective funds administration contract N° 8119-327-11, which has the digital signature of LADY VIVIAN;

h) Copy of the email dated 10 July 2022, sent to LADY VIVIAN, to the email address VIVIAN_RAQUEL@hotmail.com, at 16:30 hours, with subject “Welcome to Pandero/Welcome letter and schedule of assemblies – DNI – 08857970 RAQUEL LIDIA VIVIAN PINTO”, in which reference is made to contract 8119-327-11 and the file with PDF extension named “cartaBienvenida” is attached, which is a copy of the letter dated 10 July 2022

[1] File N° 2022037186.

regarding contract N° 8119-327-11 in which is detailed, among others, the schedule of the first three assemblies;

i) Copy of the email dated 10 July 2022, sent to Mrs. Vivian at 16:29 hours, with subject “Welcome to Pandero/Welcome letter and schedule of assemblies – DNI – 08857970 RAQUEL LIDIA VIVIAN PINTO”, in which reference is made to contract 8119-328-13 and the file with PDF extension named “cartaBienvenida” is attached, which is a copy of the letter dated 10 July 2022 regarding contract N° 8119-328-13 in which is detailed, among others, the schedule of the first three assemblies;

j) Account statement as of 30 September 2022, regarding contract N° 8119-327-11;

k) Account statement as of 30 September 2022, regarding contract N° 8119-328-13;

l) Copy of the notarial letter dated 4 August 2022, sent by LADY VIVIAN to PANDERO in which she requests the annulment of the CONTRACTS and return of her contributions, detailing the facts indicated in the complaint;

m) Copy of the email dated 30 September 2022, with subject “Fwd: Response to your request”, by means of which PANDERO staff forwards the email dated 9 September 2022 at 18:06 hours, sent by PANDERO to LADY VIVIAN, in which it is indicated that a response was provided to the complaint or claim request with service ticket N° 006428, generated on 9 September 2022 and a file is attached;

n) Copy of the letter dated 12 August 2022, sent by PANDERO to LADY VIVIAN, through which a response is given to the letter dated 4 August 2022 and with reception date 5 August 2022, in which it is indicated among others, that in case the complainant wishes the termination of her contract and return of contributions, the provisions of the first paragraph of clause 10.1 of her contract shall apply and that PANDERO cannot contravene the contract as it is law between the parties;

o) Copy of the notarial letter dated 17 August 2022 and reception date 18 August 2022, sent by LADY VIVIAN to PANDERO, through which the complainant communicates her decision to terminate the CONTRACTS, for strictly personal reasons and requests the return of USD 3,731.70 US dollars;

p) Copy of the notarial letter with certain date 24 August 2022 and notified on 25 August 2022, sent by PANDERO to LADY VIVIAN, through which a response is given to the notarial letter with reception date 18 August 2022 and she is informed that her request is not admissible;

q) Copy of the letter with legalized signature dated 22 August 2022, in which the complainant reiterates her decision to annul and terminate the CONTRACTS and indicates that despite having communicated such decision, she has been notified again to pay her second installment; likewise, she states that the sum of USD 3,731.70 US dollars must be returned in her favor, which were paid at the time of signing the annulled and terminated CONTRACTS;

r) Copy of the letter dated 24 August 2022, sent by PANDERO to LADY VIVIAN, which indicates that a response is given to the letter dated 16 August of

2022, and that the return of contributions must be made at the end of the group and with the applicable penalties; likewise, it is indicated that the contract is terminated;

11. By email dated 14 November 2022 (hereinafter, EMAIL), PANDERO was again requested to indicate the cause and date of termination of the CONTRACTS, as requested in subsection c. of the OFFICIAL LETTER; therefore, on 17 November 2022, PANDERO stated in response that the date of termination of the CONTRACTS was 24 August 2022; likewise, that the cause of the aforementioned termination was the request of the associate, by means of a letter with legalized signature, dated 22 August 2022;

12. By Official Letter No. 1745-2023-SMV/10.3, notified on 19 April 2023, an administrative sanctioning procedure was initiated against PANDERO, charging it with having failed to terminate the CONTRACT on the date requested by LADY VIVIAN, that is, 18 August 2022; therefore, it would not have complied with the provisions of article 99, literal a) of the Regulation of the System of Collective Funds and their managing companies, approved by SMV Resolution No. 020-2014-SMV/01 and its amendments (hereinafter, REGULATION) and the provisions of clause 4, numeral 4.4 and clause 10, numeral 10.1, second paragraph and third paragraph of the CONTRACTS;

13. PANDERO submitted the corresponding defenses on 2 May 2023;

14. The charge brought against PANDERO as well as the defenses submitted by the aforementioned company have been evaluated in Report No. 985-2023-SMV/10.3 issued by the General Superintendence of Prudential Compliance, which has been submitted to the knowledge of this Deputy Superintendence;

15. In observance of the Principle of Due Process contemplated both in Article IV, numeral 1.2., of the Preliminary Title and in article 248, subsection 2, of the Single Ordered Text of Law No. 27444, General Administrative Procedure Law, approved by Supreme Decree No. 004-2019-JUS and its amendments (hereinafter, TUO DE LA LPAG), by Official Letter No. 3125-2023-SMV/10, the administrative file to which this resolution refers was made available to PANDERO for its review;

16. On 19 July 2023, the managing company submitted additional written arguments;

17. On 04 September 2023, PANDERO submitted a copy of an agreement dated 28 August 2023 regarding the CONTRACTS, between the managing company and LADY VIVIAN (hereinafter, AGREEMENT), in whose clause 3, numeral 1, Pandero undertakes to return to the associate US$ 3726.98, and in numeral 3 of said clause LADY VIVIAN gives her conformity with the agreement reached, stating that there are no additional inconveniences linked to her claim. Likewise, four (04) bank transfer receipts from BCP are attached, from Pandero's current account to the complainant's savings account for a total of US$ 3726.98;

II. Issues to be determined

18. In this administrative procedure, in the opinion of this Deputy Superintendence of Prudential Supervision, it is appropriate to determine the following:

a. Whether or not PANDERO incurred an infraction set forth in Annex XIII, numeral 2, subsection 2.16 of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01 (hereinafter, SANCTIONS REGULATION), for not having complied with the collective funds management contract regarding the right of the non-awarded associate to terminate their contract at any time.

b. Whether or not it is appropriate to impose a sanction on PANDERO;

III. Analysis

3.1 Applicable regulations

19. Regarding the CONTRACTS, article 21 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 Managing Company, 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. (…)”

20. Regarding the termination of the contract by a non-awarded associate, article 99, literal a), of the REGULATION provides the following:

“Article 99.- Termination of Contract (…) The Associate may terminate the Contract at any time, provided that they comply with the following conditions

a) In the case of a non-awarded Associate, it will be necessary for them to communicate their intention to terminate the Contract to the Managing Company through the means established in the Contract.

(…)”; (Underline added).

21. Likewise, clause 4, numeral 4.4 and clause 10, numeral 10.1, second paragraph and third paragraph, of the CONTRACTS establish the following:

“4. OF THE CONTRACT (…) 4.4 The Associate may terminate their Contract, in which case the provisions of Clause 10 Termination of the Contract shall apply.”;

“10. TERMINATION OF THE CONTRACT 10.1 Contractual termination: (…) In the case of non-awarded Associates who have participated in at least one Group assembly, they may terminate their Contract at any time. For this, it will be necessary for them to communicate their intention to terminate the Contract to PANDERO through the means established in the Contract. (…)” (Underline added)

3.2 Charge

22. As established in article 99, literal a) of the REGULATION, in accordance with clause 4, numeral 4.4 and clause 10, numeral 10.1 of the CONTRACTS, the non-awarded associate has the right to terminate the contract at any time; for this, they must communicate their intention to terminate the contract to PANDERO, through the means established in the contract;

23. LADY VIVIAN in her complaint stated that, on 17 August 2022, through a notarized letter, she again requested the annulment of her contract and the return of her contributions; however, on 23 August 2022, PANDERO allegedly informed her through a letter that her request was not admissible;

24. In that sense, LADY VIVIAN submitted the notarized letter dated 17 August 2022 addressed to PANDERO, by which she indicated her decision to terminate the CONTRACTS and requested the return of her contributions;

25. In this regard, PANDERO submitted in its response to the OFFICE the aforementioned notarial letter dated 17 August 2022, notified on 18 August 2022; likewise, PANDERO submitted the notarial letter dated 24 August 2022, notified on 25 August 2022, through which a response is given to the notarial letter received on 18 August 2022 and MS. VIVIAN was informed that her request is not admissible, referring to the request for the refund of contributions;

26. In that sense, considering that MS. VIVIAN complied with communicating her decision to terminate the contract on 18 August 2022, exercising her right as a member, established in clause 4, item 4.4 and clause 10, item 10.1 of the CONTRACTS, in accordance with Article 99°, letter a) of the REGULATION and Article 1430°, second paragraph, of the CIVIL CODE2, approved by Legislative Decree No. 295 and its amendments (hereinafter, CIVIL CODE), the termination of the CONTRACTS should have occurred by operation of law on the aforementioned date;

27. However, according to what was stated by PANDERO, the date of termination of the CONTRACTS was 24 August 2022, indicating that the cause was the member's request, by means of a notarial letter with a notarized signature, dated 22 August 2022;

28. It should be added that, according to what is stipulated in the CONTRACTS and in accordance with Article 21° of the REGULATION, which establishes that: “The Contract is of a private nature and has a collective character, it regulates the relations between the members and the Administrator, and it establishes the rights and obligations of the parties (…)”, in the CONTRACTS and in the REGULATION there has not been

[2] “Article 1430 (…) Termination occurs by operation of law when the interested party communicates to the other that it wishes to invoke the termination clause”.

established a specific formality for the communication of the termination of the contract by a non-awarded member who has participated in at least one assembly of the Group;

29. In this regard, PANDERO should have considered the CONTRACTS terminated as of 18 August 2022, in accordance with the provisions of Article 99°, letter a) of the REGULATION and Article 1430°, second paragraph, of the CIVIL CODE

30. Considering the above, PANDERO would not have complied with the provisions of Article 99°, letter a) of the REGULATION and what is established in clause 4, item 4.4 and clause 10, item 10.1, second paragraph and third paragraph of the CONTRACTS, that is, PANDERO would have failed to terminate the CONTRACT on 18 August 2022;

31. Therefore, PANDERO was charged with having incurred in one (1) infringement classified as serious, according to Annex XIII, item 2, subsection 2.16 of the SANCTIONS REGULATION, under which it constitutes an infringement: “Not complying with the provisions of the collective fund administration contract entered into with the member”;

3.4 Defenses

32. In response to the charge, in a document submitted on 2 May 2023, PANDERO indicates that, having been notified with Office No. 1745-2023-SMV/10.3, through which they are requested information regarding the date and cause of termination of the contracts owned by Ms. Vivian, they proceed to indicate the following:

a) The cause of the termination of said contracts was at the express request of the member, by means of a letter with a notarized signature dated 22 August 2022.

b) For this reason, the date of termination of the CONTRACTS was 24 August 2022.

33. For its part, in its written allegations of 19 July 2023, PANDERO indicates that it has a Contract Termination Policy, in force since 12 November 2012, in whose item 5.4 the power it has to require a communication with a notarized signature before a notary public is detailed, in order to proceed with the termination of contracts of awarded members without the asset delivered;

“5.4 The awarded member who has not applied the purchase certificate may request the termination of their contract by means of a letter with a notarized signature before a notary, being entitled to the refund of the capital quotas contributed less a penalty of 2 capital quotas and less the outstanding balances for the registration fee (CI”A”, CI”B” and CI”C”). The refund will be made within 10 days following the termination of the contract.”

34. Likewise, it specifies that in the collective fund administration contract signed by the member, the same specification is made, the formality used by PANDERO being the client's request with a notarized signature before a notary public “10.3 At the Member's request: When it concerns an Awarded Member without the asset delivered, with a debt pending payment to the Collective Fund who has not communicated the choice of the asset and/or service as established in Article 117 of the Regulation of the Collective Funds System and of their Administrating Companies, must submit, within a term no greater than eight (8) days counted from the communication of the award, a letter with a notarized signature to PANDERO informing its intention to terminate the Contract.”

35. On the other hand, on the basis of the foregoing, the administrator concludes that this formality has been extended to contract termination requests made by non-awarded members, with the purpose of validating the identity of the contract holder through the notarization of their signature before a notary public, and thus provide certainty to the contract termination operation;

3.5 Evaluation of the defenses

36. As a preliminary matter, it is necessary to point out that PANDERO is a company supervised by the SMV, with operating authorization granted by Resolution CONASEV N° 152-78-EF/94.10 of 08 November 1978, and is aware of the regulations under which the collective fund system operates, as well as the rights and obligations established in the contracts it administers, for which reason it has the obligation to act diligently as a collective fund management company;

37. The foregoing in the previous recital has an impact on the fulfillment of its functions and obligations as a collective fund management company, including the provisions of Article 99°, letter a) of the REGULATIONS, in accordance with clause 4, item 4.4 and clause 10, item 10.1 of the CONTRACTS, regarding the termination of contracts by a non-awarded member, inasmuch as the management company is obliged to consider a contract terminated on the date on which the non-awarded member has communicated its intention to terminate the contract, through the means established therein;

38. In this regard, PANDERO has the obligation to comply with the contract signed with its members, which establishes the rights and obligations of the members and the management company and whose model has been authorized by the SMV at the request of the management company;

39. Additionally, the Management Company must review its procedures to verify the content of communications received from its members and give them timely attention, in accordance with the contract and the established rules, and thus avoid situations such as the one observed in this administrative sanctioning proceeding, such as the request for termination of the CONTRACTS of MS. VIVIAN, after the first assembly, as a non-awarded member;

40. For its part, PANDERO has stated in its defense that it proceeded with the termination of the CONTRACTS on 24 August 2022, based on the express request of MS. VIVIAN, by means of a letter with a signature notarially legalized, dated 22 August 2022;

41. In this regard, it must be specified that according to what is stipulated in the CONTRACTS and in accordance with Article 21° of the REGULATIONS, a specific formality has not been established for the communication of contract termination by a non-awarded member who has participated in at least one assembly of the Group;

42. In the present case, it has been proven that MS. VIVIAN sent PANDERO the notarial letter dated 17 August 2022, with a receipt date of 18 August 2022, through which she indicated her decision to terminate the CONTRACTS and requested the return of her contributions; however, PANDERO, through the notarial letter of certain date 24 August 2022, responded to the notarial letter received on 18 August 2022, that is, 6 days after the communication of the termination of the CONTRACTS, and informed MS. VIVIAN that her request is not admissible, referring to the request for the return of contributions;

43. Therefore, PANDERO was required to consider the CONTRACTS terminated by operation of law on 18 August 2022, in accordance with the provisions of clause 10, item 10.1, second paragraph of the Contracts, in Article 99°, letter a) of the REGULATIONS, in accordance with Article 1430°, second paragraph, of the CIVIL CODE;

44. With regard to what was stated in its written pleadings of 19 July 2023, these refer to circumstances other than the subject matter of the charges, that is, this case concerns a non-awarded associate who participated in an assembly, for which, as stated, the CONTRACTS did not include a specific formality for the communication of contract termination; whereas what was submitted as pleadings refers to the case of awarded associates;

45. Consequently, it is concluded that PANDERO has not refuted the charge brought against it; and, consequently, it has been established that it committed one (1) infringement classified as serious, in accordance with Annex XIII, item 2, subsection 2.16 of the SANCTIONS REGULATIONS;

IV. Evaluation of the sanction

46. In accordance with Article 7° of Supreme Decree No. 21907 on Collective Fund Companies and Article 25° of the SANCTIONS REGULATIONS; in accordance with Article 248°, item 33 of the CONSOLIDATED TEXT OF THE LPAG and Article 257°4 of the aforementioned legal framework; the administrative sanctions imposed shall take into account the criteria established by Supreme Decree No. 21907, the SANCTIONS REGULATIONS and the CONSOLIDATED TEXT OF THE LPAG;

[3] “Article 248.- Principles of administrative sanctioning power The sanctioning power of all entities is additionally governed by the following special principles: (…) 3. Reasonableness.- Authorities must ensure that the commission of the sanctionable conduct is not more advantageous for the offender than complying with the infringed rules or assuming the sanction. However, the sanctions to be applied must be proportional to the non-compliance classified as an infringement, observing the following criteria set forth for the purpose of their gradation: a) The illicit benefit resulting from the commission of the infringement; b) The probability of detection of the infringement; c) The severity of the damage to the public interest and/or the protected legal asset; d) The economic damage caused; e) Recidivism, for the commission of the same infringement within a period of one (1) year from the date the resolution sanctioning the first infringement became final. f) The circumstances of the commission of the infringement; and g) The existence or not of intentionality in the conduct of the offender”.

[4] “Article 257°.- Exculpating and mitigating circumstances of liability for infringements 1.- The following constitute conditions exculpating liability for infringements: a) Force majeure or fortuitous event duly proven. b) Acting in compliance with a legal duty or the legitimate exercise of the right of defense.

47. Within that framework, the evaluation of the sanction must consider: a) The offender's background; b) Recidivism5; c) The circumstances of the commission of the infringement; d) The economic damage caused and its impact on the market; e) The illicit benefit resulting from the commission of the infringement; f) The probability of detection of the infringement; g) The severity of the damage to the public interest and/or the protected legal asset; h) The existence or not of intentionality in the conduct of the offender;

48. In that sense, in order to reconcile the criteria of the CONSOLIDATED TEXT OF THE LPAG with those set forth in Supreme Decree No. 21907 and in the SANCTIONS REGULATIONS, and so that these criteria are adequately considered for their assessment to observe the principle of reasonableness and for the sanction to be imposed to conform to them, the following criteria are analyzed;

49. Regarding the offender's background, in accordance with the provisions of Article 25°, letter a) of the SANCTIONS REGULATIONS, the background consists of the final sanctions imposed by the SMV within the period of four (4) years prior to the commission of the infringement to be sanctioned. The aforementioned article specifies that the commission of the same infringement in the year prior to the infringement to be sanctioned is not considered as background;

50. In that sense, from the review carried out during said period, it has been verified that PANDERO has the following final sanction;

No. Resolution Resolved by Finality Background i Superintendency Resolution Attached SMV No.
003-2020-
SMV/106
PANDERO EAFC is sanctioned with seven (7) UIT for having incurred in an infringement of a serious nature typified in Annex XIV, item 2, subsection 2.22 of the Sanctions Regulations, approved by CONASEV Resolution No. 055-2001-EF/94.10 and its amending rules, in force on the date the events occurred, for not having convened the inaugural assembly of a group with the minimum advance notice required by the regulations. Likewise, by RSUP No. 085-2021-SMV/107 , it is declared unfounded the appeal filed by PANDERO against RSASP No. 003-2020-SMV/10, whereby the administrative remedy was declared exhausted. 25/08/20218 Yes

[c] Mental incapacity duly proven by the competent authority, provided that it affects the ability to understand the infringement.

[d] The mandatory order of a competent authority, issued in the exercise of its functions.

[e] Error induced by the Administration or by a confusing or illegal administrative provision.

[f] Voluntary rectification by the potential sanctioned party of the act or omission imputed as constituting an administrative infringement, prior to the notification of the statement of charges referred to in subsection 3) of Article 255.

2.- The following constitute conditions mitigating liability for infringements:

a) If, once an administrative sanctioning procedure has been initiated, the offender expressly and in writing acknowledges its liability. In cases where the applicable sanction is a fine, it shall be reduced to an amount not less than half of its value.

b) Others established by special regulation”.

[5] The sanction criteria referred to Recidivism and the Probability of detection of the infringement were introduced by Article 2 of Legislative Decree No. 1272, which amended, among others, Article 230; paragraph 3 of Law No. 27444, the Law on General Administrative Procedure.

[6] Notified on 31 January 2020.

[7] Notified on 25 August 2021.

[8] It became final upon the declaration as unfounded of the appeal filed by PANDERO.

51. With regard to recidivism for the commission of the same infringement, the final sanction imposed by the SMV within a period 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 PANDERO has no sanctions within the aforementioned period for the commission of the same infringement under analysis in this administrative sanctioning proceeding, and therefore recidivism is not established;

52. With regard to the circumstances of the commission of the infringement, it must be mentioned that PANDERO, as a company supervised by the SMV, is aware of the regulations governing the collective fund system and, in that sense, of the regulations relating to the members' right to terminate their contracts. However, with respect to the contract signed by MS. VIVIAN, the management company has breached the aforementioned regulations;

53. It must be reiterated that PANDERO is obliged to comply with the contract signed with its members, which establishes the rights and obligations of the members and the management company and whose model is approved by the SMV at the request of the management company;

54. In the present case, PANDERO did not consider the CONTRACTS terminated upon receipt of the notarial letter on 18 August 2022, by which MS. VIVIAN exercised her right to terminate the CONTRACTS. On the contrary, it was verified that PANDERO responded to the aforementioned letter on 24 August 2022 and informed MS. VIVIAN that her request is not admissible, referring to the request for the return of contributions;

55. It should be noted that, in application of the provisions of the CONTRACTS, the return of contributions was not admissible; however, as a result of the AGREEMENT of 28 August 2023, that is, on a date after the transmittal of the report of the investigating body to the management company, PANDERO proceeded to return to MS. VIVIAN the contributions made by her;

56. With respect to the economic damage caused and the impact on the market, it has not been evidenced that the infringement committed by PANDERO has had an impact on the market or produced a concrete quantifiable damage in the market; however, this fact affects the confidence of members or potential members in the collective fund system;

57. Regarding the illicit benefit resulting from the commission of the infringement, it must be noted that it has not been proven that PANDERO obtained a benefit directly related to the infringement subject to analysis in this administrative proceeding;

58. Regarding the probability of detection of the infringement, it must be indicated that the constitutive fact of the infringement committed by PANDERO was evidenced when verifying compliance with the regulations applicable to the development of its functions, based on the facts stated by MS. VIVIAN in the complaint filed against the administering company, so the probability of detection of the infringement was low;

59. As for the severity of the harm to the public interest and/or protected legal interest, it must be indicated that, in general, failures in the processes that cause delays in the resolution of contracts can affect the members with respect to the opportunity for contract resolution and its consequences if it had been carried out before or after the inaugural assembly and, where applicable, with respect to the participation of such members in the draws for the return of contributions and, consequently, in the opportunity in which they could receive the return of the funds corresponding to them;

60. Likewise, it must be noted that according to the provisions of article 99°, literal a) of the REGLAMENTO and the provisions of clause 4, numeral 4.4 and clause 10, numeral 10.1 of the CONTRACTS, PANDERO is obligated to consider a contract of a non-awarded member as resolved, provided that the latter has communicated its intention through the means established in the contract;

61. In this sense, and in order to avoid a possible affectation to its clients, the administering company must establish the procedures to verify the communications received from its members; and to address them, in accordance with the contract and the established rules;

62. Thus, taking into account that collective funds administering companies have the obligation to act in strict compliance with the regulations applicable to them, including the provisions established in the collective funds administration contracts they sign with members, in protection of the collective funds system; otherwise, it affects the legal interest referred to the integrity of the market, that is, of the collective funds system and especially affects the confidence of members or potential members in said system;

63. With regard to the existence or not of intentionality in the conduct of the infringer, in the present case it has been proven that PANDERO responded to the contract resolution communication dated 18 August 2022, on 24 August 2022 and informed MS. VIVIAN that her request is not admissible, referring to the request for return of contributions;

64. However, according to what PANDERO stated, the date of resolution of the CONTRACTS was 24 August 2022, indicating that the cause was the member's request, by notarial letter with legalized signature, dated 22 August 2022;

65. That is, PANDERO materialized the resolution of the CONTRACT six (6) days after the communication from MS. VIVIAN; likewise, it did not consider as a cause for resolution the notarial letter with reception date 18 August 2022, nor the resolution request submitted on 04 August 2022, despite the fact that according to the stipulations in the CONTRACTS and in accordance with article 21° of the REGLAMENTO, no specific formality has been established for the communication of contract resolution by a non-awarded member who has participated in at least one Group assembly;

66. From the foregoing, it is not admissible that a Collective Funds Administering Company such as PANDERO, with several years operating in the market, can ignore compliance with essential rules under which the Collective Funds system operates and the very provisions of the contracts it administers, neglecting its responsibility towards its members;

67. In addition to the foregoing, it is appropriate to analyze the exempting and mitigating circumstances of responsibility established in article 257° of the TUO DE LA LPAG as well as the mitigating and exempting conditions of responsibility established in articles 26° and 27° of the REGLAMENTO DE SANCIONES;

68. With regard to the voluntary declaration of the commission of the infringement, the infringer's contribution to its clarification and the correction made after its requirement, established in article 257°, numeral 2, subparagraphs a) and b) of the TUO DE LA LPAG and in article 26°, literals a), b) and c) of the REGLAMENTO DE SANCIONES, it must be noted that PANDERO has not acknowledged the commission of the infringement under evaluation; however, it did contribute to the clarification of the facts, insofar as it presented in its response to the OFICIO the aforementioned notarial letter dated 17 August 2022, with proof of receipt on 18 August 2022;

69. On the other hand, it is not observed that in the present case any of the assumptions constituting exempting conditions of responsibility indicated in article 27° of the REGLAMENTO DE SANCIONES has been configured;

70. From the foregoing, it is concluded that PANDERO has incurred in the commission of one (1) infraction classified as serious in Annex XIII, numeral 2, subsection 2.16 of the SANCTIONS REGULATION, for which PANDERO must be imposed a sanction corresponding to infractions classified as serious in accordance with article 38° of the SANCTIONS REGULATION; therefore, a fine greater than 25 UIT and up to 50 UIT or the prohibition of the formation of new groups would be applicable;

71. However, taking into account 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 classified as an infraction, it must also be considered that PANDERO has collaborated with the clarification of the facts, that the company is not a repeat offender regarding the evaluated infraction, that intentionality in the commission of the infraction has not been proven, that it has not been evidenced that PANDERO had an illicit benefit resulting from the commission of the infraction and the signing of the AGREEMENT; therefore, in accordance with the provisions of the last paragraph of article 25° of the SANCTIONS REGULATION, this Deputy Superintendency considers that a sanction lower than that provided for serious infractions should be imposed on PANDERO, in accordance with the provisions of article 39° of the SANCTIONS REGULATION;

In accordance with the provisions of article 32°, numeral 16, 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 Pandero S.A. EAFC has incurred in one (1) infraction classified as serious as established in Annex XIII, numeral 2, subsection 2.16 of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01, for not having complied with the collective funds administration contract regarding the right of the non-awarded associate to terminate their contract at any time.

Article 2°.- Sanction Pandero S.A. EAFC with a reprimand for the commission of the infraction referred to in the previous article.

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

Article 4°.- In the event that this resolution is not subject to challenge through a reconsideration or appeal within a period of fifteen (15) business days from notification and becomes final, it must be published on the SMV Institutional Page on the Single Digital Platform of the Peruvian State (www.gob.pe/smv), in observance of the provisions of numeral 1, article 7° of the Policy on the dissemination of regulatory projects, general legal norms, early agenda and other administrative acts of the SMV, approved by SMV Resolution No. 014-2014-SMV/01 and its amendment, and by the provisions of article 14° of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01.

Article 5°.- Transcribe this resolution to Pandero S.A. EAFC and to Mrs. Raquel Lidia Vivian Pinto.

Register, communicate and publish.

Omar Gutiérrez Ochoa
Deputy Superintendent
Deputy Superintendency of Prudential Supervision