Superintendency Resolution Deputy SMV

No. 025-2024-SMV/10

Lima, 08 May 2024

Summary: Promotora OPCION S.A. EAFC is sanctioned with one (1) reprimand for having incurred in one (1) infraction of a minor nature typified in Annex I, numeral 3, subparagraph 3.1 of the SANCTIONS REGULATION, for not having complied with submitting the interim financial information of the collective funds system it administers, corresponding to the month of February 2021, within the term established in the applicable regulations.

Administered
:
Promotora OPCION S.A. EAFC
Subject
:
Administrative sanctioning procedure
File No.:
2023034810

The Deputy Superintendent of Prudential Supervision

VIEWS:

Administrative file No. 2023034810, and Report No. 491-2024-SMV/10.3, issued by the General Intendancy of Prudential Compliance; as well as the discharges presented by Promotora OPCION S.A. EAFC; and,

CONSIDERING:

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

I. FACTS

2. Within the supervision functions assigned to the SMV, an evaluation was made of the timely compliance in the presentation of periodic information by Promotora OPCION S.A. EAFC (hereinafter, OPCION EAFC);

3. As a result of said evaluation and under the provisions of the Single Ordered Text of the General Administrative Procedure Law, Law No. 27444, approved by Supreme Decree No. 004-2019-JUS (hereinafter, TUO LPAG), through Official Letter No. 3729-2023-SMV/10.3, notified on 10 August 2023 (hereinafter, OFFICIAL LETTER OF CHARGES), a charge was formulated against OPCION EAFC for infraction of the Regulation of the System of Collective Funds and their Administering Companies, approved by SMV Resolution No. 020-2014-SMV/01 and its amendments (hereinafter, REGULATION), in force at the time of the events, for not having timely presented the interim financial information of the collective funds system administered by OPCION EAFC, corresponding to the month of February 2021. It should be noted that the deadline for the presentation of this information was 30 March 2021. However, it was sent to the SMV on 31 March 2021;

4. The aforementioned non-compliance is typified in Annex I, numeral 3, subparagraph 3.1 of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01 (hereinafter, SANCTIONS REGULATION), which prescribes as an infraction of a minor nature: “Submit outside the established term, or do so incompletely, or, without observing the technical specifications approved by the SMV or without communicating the approval by the corresponding corporate body, to the SMV, to the Exchange, to the entity in charge of the centralized negotiation mechanism or to any other entity or subject of the securities market, the individual or consolidated audited financial information, the individual or consolidated interim financial statements, management report, special audit report, material events and annual reports”;

5. By writing received on 15 August 2023, OPCION EAFC presented the discharges to the observation made;

6. The charge formulated, as well as the discharges presented by OPCION EAFC have been subject to evaluation by the General Intendancy of Prudential Compliance in Report No. 491-2024-SMV/10.3, which has been submitted to the knowledge of this Deputy Superintendency;

7. In observance of the Principle of Due Process contemplated both in article IV, subparagraph 1, numeral 1.2 of the Preliminary Title, as well as in article 248, numeral 2, of the TUO LPAG, through Official Letter No. 1563-2024-SMV/10, the administrative file to which this resolution refers was made available to OPCION EAFC for its review;

II. ISSUES TO DETERMINE

8. In the present administrative procedure, in the opinion of this Deputy Superintendency, it corresponds to determine the following:

a. Whether OPCION EAFC incurred or not in infraction by not having presented the interim financial information of the collective funds system it administers, corresponding to the month of February 2021, within the term established in article 74 of the REGULATION, in force at the date of the events;

b. Whether it corresponds or not to impose a sanction on OPCION EAFC;

III. ANALYSIS

3.1 Of the applicable regulations

9. Article 74, literal a) of the REGULATION establishes the following:

[1] File No. 2021008508.

“Article 74.- Information on the administered Collective Funds

The Administrator must send to the SMV the following:

a) Interim financial information corresponding to the close of each month, in accordance with the provisions of the Chart of Accounts of Collective Funds, within thirty (30) calendar days following each of them.

(…)”. (Underline added);

3.2. Of the charges formulated

10. Through the OFFICIAL LETTER OF CHARGES, charges were formulated against OPCION EAFC for not communicating, within the term established by the regulations, the interim financial information of the collective funds system administered by OPCION EAFC, corresponding to the month of February 2021;

3.3. Of the discharges presented

11. In attention to the charges made, through writing presented on 15 August 2023, OPCION EAFC states that during said period the second wave of the Covid 19 pandemic occurred in our country, which affected the health of its personnel. It adds that the person in charge of making the presentation of the financial information, at that time held the position of general accountant of the company, was sick during those days;

12. For this reason, the administering company states that said person had to be absent due to the treatment received, and consequently, involuntarily and for the first time in their time of activity at the administering company, filed information with the SMV after the deadline;

13. Likewise, OPCION EAFC states that, after all that has been set forth, it requests that consideration be given to the fact that the infraction committed was the result of a fortuitous event or force majeure, because during this period the country was facing the second wave of the Covid 19 pandemic. Likewise, the administering company requests that consideration be given to the fact that it has no record of any sanction imposed because it has always been respectful and has complied to date with all the guidelines regulated by the SMV and other State bodies;

3.4 Evaluation of the defenses

14. In view of the infraction that is the subject of the charges in this administrative sanctioning procedure, OPCION EAFC states that during the period for submitting the periodic information observed, the second wave of the COVID-19 pandemic occurred in the country; which affected the health of the personnel responsible for submitting the information, who was subject to medical treatment; therefore, it requests that consideration be given to the fact that the infraction committed was the result of a fortuitous event or force majeure due to the second wave of the COVID-19 pandemic;

15. In this regard, it should be noted that OPCION EAFC is a company supervised by the SMV, with authorization to operate granted by Resolution CONASEV No. 167-88-EF/94.10 of 26 October 1988, which is why it is aware of the regulations applicable to the submission of periodic and occasional information; and, consequently, it is obliged to comply with the provisions of said regulations and therefore to act diligently in the timely submission of said information;

16. In this regard, it should be noted that upon obtaining authorization to operate from the SMV, the administering company acquires the obligation to comply with the provisions issued by the SMV, insofar as they are applicable to it, such as, among others, the rules regulating the submission of periodic information to the SMV, since they are within the scope of supervision of the SMV;

17. Pursuant to article 72 of REGLAMENTO2, administering companies are obliged to submit any information established by regulation or required by the SMV, in accordance with the technical specifications and other rules issued in that regard, under the means, forms and at the time established by the SMV. In relation to the foregoing, article 74, literal a) of the REGLAMENTO provides that administering companies, among which OPCION EAFC is included, are obliged to submit to the SMV the interim financial information of the collective funds they administer corresponding to the close of each month, within thirty (30) calendar days following each of them;

18. From the foregoing, it follows that OPCION EAFC should have submitted the interim financial information of the collective funds system it administers, corresponding to the month of February 2021, within the following thirty (30) calendar days, the deadline for its submission being 30 March 2021;

19. In that sense, it is noted that the administering company had a period of thirty (30) calendar days to comply with the obligation to submit to the SMV the periodic information that is the subject of the charge, within the established period, and therefore it should have implemented, with due anticipation, the necessary internal procedures and controls for its proper observance. It should be highlighted that the infraction that is the subject of the charges was committed after more than one year had elapsed since the National State of Emergency was declared as a consequence of the COVID-19 outbreak (which began on 16 March 2020)3;

20. In addition to the foregoing, regarding the difficulties caused by the COVID-19 pandemic, it should be specified that at the level of the central government measures were adopted in this regard, the National State of Emergency having been decreed in order to address the health crisis caused by Covid-19 in accordance with the provisions of article 28 of Urgency Decree No. 029-2020, amended by article 12 of Urgency Decree No. 053-2020 and by article 2 of Supreme Decree No. 087-2020-PCM, whereby the periods for the processing of administrative procedures, among which were administrative sanctioning procedures, were suspended from 21 March 2020 until 10 June 2020, with the periods resuming on 11 June 2020; a regulatory situation that was known to OPCION EAFC; however, after the aforementioned resumption date, the administrator incurred the commission of the imputed infraction;

[2] “Article 72.- Obligation to submit information The Administrator is obliged to submit any information established by regulation or required by the SMV, in accordance with the technical specifications and other rules issued in that regard, under the means, forms and at the time established by the SMV.”

[3] Published in the Official Gazette El Peruano on 15 March 2020, by Supreme Decree No. 044-2020-PCM.

EXEMPTING GROUND OF LIABILITY FOR FORTUITOUS EVENT, FORCE MAJEURE OR ANOTHER EXCEPTIONAL SITUATION THAT, IN THE SMV'S CRITERION, IS EQUIVALENT TO A DULY PROVEN FORTUITOUS EVENT OR FORCE MAJEURE

21. On this matter, OPCION EAFC alleges that the infraction subject to charges was committed as a consequence of a series of events that qualify as fortuitous event or force majeure or, in any case, comparable situations, since the reasons that caused the delay in the payments of the yields are not attributable to it, due to COVID-19 and its impact on the official responsible for sending the information, which complicated the timely submission of the financial information of the February 2021 system;

22. In this regard, it should be noted that the exemption from liability for fortuitous event or force majeure set forth in article 27, literal a) of the SANCTIONS REGULATION and in article 257, numeral 1 literal a) of the TUO LPAG contemplates those cases in which the infringing subject has not carried out an action of its own that was decisive in the configuration of the infraction, but rather it was configured as a consequence of extraordinary, unforeseeable and irresistible circumstances; and, in that context, since the result was not desired by the author or could not have been avoided despite acting with due diligence, it is exempt from administrative liability for the commission of the infraction;

23. Therefore, the facts that constitute fortuitous event, force majeure and their causality, as established by the rule, must be duly proven, with the burden of proof falling on the administered party, who must demonstrate the notoriety or significance of the unforeseeable or unavoidable fact as the cause of the conduct imputed;

24. It should be noted that the commission of the infraction occurred after more than a year had elapsed since the declaration of the National State of Emergency as a consequence of the COVID-19 outbreak and after the extension of the deadline established by the central government for the purposes of submitting information. Once these situations had elapsed, the administrator, as part of its duty of diligence and internal management, should have adopted the corresponding measures in order to comply with the obligation subject to charge;

25. In that sense, it is up to OPCION EAFC to prove what were the extraordinary and unforeseeable circumstances that led to the configuration of the infraction under evaluation, which caused a delay in the submission of the information. However, the administrator has limited itself to indicating that said delay was caused by COVID and the health of its accountant, without presenting evidence that proves what were the extraordinary, unforeseeable and irresistible circumstances, and that, despite its due diligence and risk management, affected its ability to timely submit the System information;

26. According to the foregoing, it is not appropriate to apply the exemption from liability described in article 27, inciso a), of the SANCTIONS REGULATION, alleged by OPCION EAFC, with respect to the infraction subject to charges;

27. According to the foregoing, it is concluded that OPCION EAFC has not disproved the imputed charge;

28. Consequently, it is noted that OPCION EAFC has incurred in one (1) infraction classified as minor, typified in Annex I, numeral 3, inciso 3.1, of the SANCTIONS REGULATION according to which the following constitutes an infraction:

“Submit after the established deadline, or do so incompletely, or, without observing the technical specifications approved by the SMV or without communicating the approval by the corresponding corporate body, to the SMV, to the Exchange, to the entity in charge of the centralized negotiation mechanism or to any other entity or subject of the securities market, the audited individual or consolidated financial information, the individual or consolidated interim financial statements, management report, special audit report, material events and annual reports”;

IV. EVALUATION OF THE SANCTION

29. In accordance with the provisions of article 35 of the SANCTIONS REGULATION, the commission of an infraction of a minor nature is subject to a sanction corresponding to a warning or a fine of no less than one (1) and up to twenty-five (25) Tax Units (UIT);

30. In this sense, the SANCTION CRITERIA must be taken into account, in whose inciso 1 it establishes that the purpose of said criteria is “to establish the sanction parameters that within the framework of the General Administrative Procedure Law, the Securities Market Law and the Decree Law on Collective Investment Fund Management Companies allow sanctions to be applied to issuers with securities registered in the Public Registry of the Securities Market, legal persons registered in the Registries under the charge of the SMV, and other persons obliged to submit periodic or occasional information for non-compliances in the timely submission of said information that are typified as minor infractions in the annexes of the Sanctions Regulation, approved by CONASEV Resolution No. 055-2001-EF-94.10. The criteria developed below apply exclusively to non-compliances with the rules that regulate the submission of periodic or occasional information and do not apply extensively to the other cases investigated by this Superintendency”;

31. Therefore, to evaluate the sanction that must be imposed on OPCION EAFC for the non-compliance with the deadline for submitting periodic information described, the SANCTION CRITERIA must be applied;

32. Likewise, it should be mentioned that the application of said criteria observes the Principle of Proportionality established in the TUO LPAG, since it allows determining in a predictable manner for the administered party, the sanctions to be imposed on securities issuers, on persons registered in the RPMV for non-compliances in the deadlines for submitting information to which they are obliged by the rules and for omission in the submission of information requested by the SMV;

33. In order to determine the sanction applicable to the infractions subject to evaluation and in accordance with the provisions of subsection 3.2 of the SANCTION CRITERIA, the evaluation criteria set forth in article 248, numeral 3, of the TUO LPAG, in article 7 of Decreto Ley N° 21907 on Empresas de Fondos Colectivos, modified by Ley N° 276594, in article 25 of the SANCTION REGULATIONS, as well as in subsection 4.1 of the SANCTION CRITERIA, must be taken into account, whose observance is mandatory;

[4] By means of Ley N° 27659, article 7° of Decreto Ley N° 21907 was modified, providing that companies administering collective funds that contravene the provisions of the aforementioned decree or the regulatory norms issued by the SMV shall be sanctioned taking into consideration the offender's antecedents, the circumstances of the commission of the infraction, the harm caused and its repercussion on the market.

34. Within this framework, the evaluation of the sanction must consider: a) antecedents of the offender; b) recidivism; c) the circumstances of the commission of the infraction; d) the harm caused and the repercussion on the market; e) the illicit benefit resulting from the commission of the infraction; f) probability of detection of the infraction; g) seriousness of the harm to the public interest and/or protected legal interest; and, h) the existence or not of intentionality in the offender's conduct;

35. With regard to the sanction antecedents, it must be noted that in accordance with the SANCTION CRITERIA and with article 25, literal a) of the SANCTION REGULATIONS, final sanctions imposed by the SMV within the term of four (4) years prior to the commission of the infractions to be sanctioned constitute antecedents. In this sense, from the review carried out in said period, in relation to the charges subject to evaluation, it has been verified that OPCION EAFC does not register sanction antecedents;

36. With regard to recidivism for the commission of the same infraction, the final sanction imposed by the SMV within the term of one (1) year prior to the commission of the infraction to be sanctioned is taken into account. Within this framework, it must be stated that OPCION EAFC does not present sanctions within the aforementioned term, for the commission of the same infraction subject to analysis, in the present administrative sanctioning procedure, and therefore recidivism is not configured;

37. As regards the circumstances of the commission of the infractions, it must be mentioned that OPCION EAFC, in its capacity as a company supervised by the SMV, knows the norms that regulate the collective funds system, and, in that sense, knows the norms that oblige it to submit to the SMV periodic information within the terms established therein. However, OPCION EAFC submitted late the interim financial information of the collective funds system it administers, corresponding to the month of February 2021, subject to evaluation in the present sanctioning procedure, with a (1) day delay from the submission deadline;

38. With regard to the economic harm caused and the repercussion on the market, it has not been evidenced that the infraction incurred by OPCION EAFC has produced a concrete quantifiable harm in the market, that is, it has not been determined that it has concretely affected or caused economic harm to one or more investors, and therefore it has also not been evidenced that there has been repercussion on the collective funds system;

39. As concerns the illicit benefit resulting from the commission of the infractions, it must be noted that it has not been proven that OPCION EAFC has obtained a benefit directly related to the infraction subject to analysis in the present administrative sanctioning procedure;

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

41. With respect to the seriousness of the harm to the public interest and/or protected legal interest, it must be taken into consideration that in the case of the submission of periodic or occasional information, any non-compliance with the norms on its timely submission, that is, the non-observance of the terms established to submit said information, affects the transparency of the collective funds system, insofar as it safeguards the right of members (actual as well as potential) and the general public to access said information in a timely manner in order to adopt investment decisions or carry out a certain evaluation; likewise, it affects the SMV in the implementation of its supervision and control activities that seek to protect the integrity of the market;

42. Therefore, it can be stated that OPCION EAFC has affected the protected legal interest, which is the transparency of the collective funds system, given that it submitted late the interim financial information of the collective funds system it administers, corresponding to the month of February 2021;

43. With respect to the existence or not of intentionality in the offender's conduct, it has not been evidenced that OPCION EAFC acted with intentionality in the commission of the infraction;

44. Continuing with the analysis, it is appropriate to determine the sanction to be imposed on OPCION EAFC for the infraction subject to analysis. In that regard, the SANCTION CRITERIA in force at the time the events occurred establish that a warning sanction may be imposed when the following guidelines set forth in subsection 4.2, numeral (ii) of said criteria are concurrently met: (i) the impact on market transparency is minimal; (ii) the infringement committed has not caused a specific harm to investors or members; (iii) the infringing party has no prior record or, if it does, the infringements are classified as minor offenses imposed in the four (4) years prior to the commission of the infringement being assessed; (iv) the infringing party has not obtained a benefit from its illegal conduct; and, (v) it has not been proven that the infringer acted with intent in committing the infringement;

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

46. On this matter, as can be seen from the assessment carried out, it has been verified that OPCION EAFC has no record of sanctions in the four (4) years prior to the commission of the infringement being assessed;

47. Furthermore, it has not been proven that the infringements committed have caused a specific harm to investors or members, it has not been evidenced that OPCION EAFC has obtained a benefit from its illegal conduct, nor has it been proven that it acted with intent in committing the infringements, and no recidivism has been observed in this case;

48. As for the condition referring to the impact on market transparency being minimal, it must be noted, in principle and as mentioned in the assessment of the sanction criteria, that any non-compliance with the regulations regarding the deadlines established for submitting periodic information affects the transparency of the collective funds system, especially if this non-compliance is prolonged over time; since such information is relevant not only for the members, but for the market in general. In that regard, it is the obligation of every management company to submit the periodic information required by the regulations within the established deadlines, that is, in a timely manner;

49. However, it should be noted that the interim financial information of the collective funds system managed by OPCION EAFC, corresponding to the month of February 2021, although it was submitted one (1) day late, it can be seen that during the period in which OPCION EAFC did not report said information to the SMV, the degree of impact on market transparency was minimal. Without prejudice to the fact that in similar cases, a greater delay in submitting said information may determine a greater degree of impact on the transparency of the collective funds system;

50. In that regard, as a result of the assessment carried out, it is observed that OPCION EAFC meets the conditions established in subsection 4.2, numerals (iv) and (v) of the SANCTION CRITERIA, with respect to the infringement subject to charges; therefore, in accordance with said criteria, a warning sanction should be applied to said infringement;

51. In addition to the foregoing, it is appropriate to analyze the exculpatory and mitigating circumstances of liability established in article 257 of the TUO LPAG5 as well as the mitigating and exculpatory conditions of liability established in articles 26 and 27 of the SANCTION REGULATIONS. In this regard, it is not observed that in the present case any of the circumstances constituting exculpatory conditions of liability have been configured;

52. Likewise, in accordance with the analysis, it is not observed that in the present case any of the circumstances constituting mitigating conditions of liability have been configured. With regard to the voluntary declaration of the commission of the infringements (article 257, numeral 2 of the TUO LPAG) and the infringer's contribution to their clarification, established in article 26, literals a) and b) of the SANCTION REGULATIONS6, it should be noted that OPCION EAFC has not expressly acknowledged the commission of the infringement under assessment; however, it has contributed to the clarification of the facts;

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

[6] “Article 26.- MITIGATING CIRCUMSTANCES OF LIABILITY FOR INFRACTIONS The following constitute mitigating circumstances of liability for infractions: a) Express and written acknowledgment of liability by the offender, once the administrative sanctioning procedure has been initiated. (…) b) Contribution by the offender to the clarification of the infraction. (…)”.

53. In accordance with the provisions of Article 32, numeral 17, of the Regulations on Organization and Functions of the SMV, approved by Supreme Decree No. 216-2011-EF and its amendments, as well as the SANCTION CRITERIA and its amendment;

RESOLVES:

Article 1.- Declare that Promotora Opcion S.A. EAFC has incurred one (1) minor infraction classified in Annex I, numeral 3, subparagraph 3.1 of the Sanctions Regulations, approved by SMV Resolution No. 035-2018-SMV/01, for having submitted, outside the deadline established in the applicable regulations, the interim financial information of the collective funds system it administers, corresponding to the month of February 2021.

Article 2.- Sanction Promotora Opcion S.A. EAFC with one (1) warning for the infraction detailed in the preceding article.

Article 3.- This resolution does not exhaust the administrative remedy, unless it is consented to, and may be challenged before the Deputy Superintendency of Prudential Supervision by filing a motion for reconsideration, submitted to 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 challenged by a motion for reconsideration within fifteen (15) business days of notification and becomes final, it must be published on the SMV Institutional Page on the Single Digital Platform of the Peruvian State, in observance of the provisions of numeral 1, Article 7 of the Policy on 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 Regulations, approved by SMV Resolution No. 035-2018-SMV/01.

Article 5.- Transcribe this resolution to Promotora Opcion S.A. EAFC.

Register, communicate and publish.

Omar Gutiérrez Ochoa
Deputy Superintendent
Deputy Superintendency of Prudential Supervision