Electronic document digitally signed within the framework of Law No. 27269, Law on Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and the authorship of the signature(s) can be verified at https://apps.firmaperu.gob.pe/web/validador.xhtml

Superintendency Adjunct Resolution SMV No. 029-2024-SMV/11

Lima, 16 de mayo de 2024

Summary: To sanction Dunas Energía S.A.A. with one (01) reprimand for having committed one (01) minor infraction, typified in subsection 3.1., item 3 of Annex I of the Sanctions Regulations.

Administered : DUNAS ENERGÍA S.A.A.
Asunto
: Single-instance Administrative Sanctioning Procedure Main Type : Subsection 3.1. of item 3 of Annex I of the Regulations on Sanciones INFRACCIONES LEVES File No.: 2023037221

VISTOS:

Administrative file No. 2023037221, containing the administrative sanctioning procedure initiated by the General Directorate of Compliance with Conducts of the Securities Superintendency – SMV (hereinafter, the IGCC), against Dunas Energía S.A.A. (hereinafter, Issuer); as well as Report No. 443-2024-SMV/11.2 of 12 April 2024 (hereinafter, the Report), issued by the IGCC;

CONSIDERANDO:

I. FUNCIÓN Y COMPETENCIA DE LA SASCM

1. That the IGCC —the investigating body of the administrative sanctioning procedures (hereinafter, the PAS) to which this case refers— has brought the PAS of administrative file No. 2023037221 to the attention of the Deputy Superintendency of Market Conduct Supervision of the SMV (hereinafter, SASCM) in order for it to issue a decision as the sanctioning body of sole instance in said PAS. In this way, the SASCM assumes jurisdiction in observance of the exercise of the supervisory function and the sanctioning power of the Securities Superintendency – SMV established

Electronically signed document within the framework of Law No. 27269, Law on Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and the authorship of the signature(s) can be verified at https://apps.firmaperu.gob.pe/web/validador.xhtml

through the Single Consolidated Text of its Organic Law, Decree Law No. 26126 (hereinafter, LOSMV), and the Single Ordered Text of the Securities Market Law, Legislative Decree No. 861, approved by Supreme Decree No. 020-2023-EF-1 1 (hereinafter, TUO de la LMV); 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 Superintendency of the Securities Market – SMV, approved by Supreme Decree No. 216-2011-EF (hereinafter, ROF-SMV), in the sense that it is a specific function of the SASCM to impose sanctions in a single administrative instance for the commission of infractions whose compliance control corresponds to the aforementioned Deputy Superintendency. Likewise; the SASCM has the powers to issue corrective measures aimed at reversing the situation altered by the commission of the infraction;

II. HECHOS, CARGO Y DESCARGOS DEL EMISOR

2.1 Hechos

2. That, it was evaluated whether the Issuer complied with timely communicating material facts;

2.2 Cargos

3. That, as a result of said evaluation, through Official Letter No. 5254-2023-SMV/11.2 of 21 November 2023 (hereinafter, the Letter of Charges), charges were formulated against the Issuer, because it would not have complied with presenting, within the established term, the material fact regarding the designation of the firm Caipo y Asociados S. Civil de R.L., a member firm of KPMG, as external audit firm for the 2022 fiscal year, which should have been communicated on 22 March 2022, the date on which its designation was approved in the Universal Shareholders' Meeting; however, it was communicated through material fact of 24 March 2022 (File No. 2022011624);

4. That, this non-compliance is typified in subsection 3.1 of numeral 3 of Annex I of the Sanctions Regulation;

2.3 Descargos

5. That, through a written submission presented on 4 December 2023, the Issuer presented its defenses, stating the following:

i) On 22 March 2022, the Issuer communicated as a material fact the designation of its External Auditor for the year 2022, approved by the General Shareholders' Meeting, held on the same day; however, after detecting a material error, through material fact of 24 March 2022, the Issuer proceeded to regularize the information specifying that the designated External Auditor was Caipo y Asociados S. Civil de R.L., a member firm of KPMG. En ese sentido, el

[1] Through 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.

Electronic document digitally signed within the framework of Law No. 27269, Law of Signatures and Digital Certificates, its Regulation and amendments. The integrity of the document and the authorship of the signature(s) can be verified at https://apps.firmaperu.gob.pe/web/validador.xhtml

Issuer states that it has complied with the provisions of 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), and that any sanction would be contrary to the principles of informality and culpability.

ii) With regard to the principle of informality, the Issuer states that this principle is applied by entities of the Public Administration such as the SMV, and seeks to avoid harm to the administered party due to formal issues when they can be remedied, as long as the rights of third parties or the public interest are not affected. It also adds that the SMV has applied this principle when resolving sanctioning proceedings, even dismissing charges, in accordance with the provisions of Deputy Superintendent Resolution SMV No. 044-2023-SMV/11 of 20 April 2023.

iii) Likewise, the Issuer states that it carried out the regularization immediately after identifying the need to clarify certain aspects of the material fact reported on 22 March 2022. It also states that this action caused no harm to third parties or to the public interest, given that:

Its shareholders are Grupo Energía Bogotá S.A. ESP (hereinafter, “GEB”) and Perú Power Company S.A.C., the latter being a company controlled by GEB. In that sense, the regularization has not harmed any third party or the public interest since the shareholders of Dunas Energía are member companies of GEB.
The impact on the transparency of the securities market is minimal, since possible investors were not left in a state of defenselessness, and the appointment of the External Auditor was reported on 22 March 2022, and less than forty-eight hours later the corresponding clarification with the name of the appointed auditor was provided.

Based on the foregoing, the Issuer states that imposing a sanction on it would contravene the principle of informality, since the regularization was carried out as soon as the formal error was identified, without affecting the rights of third parties or the public interest.

iv) On the other hand, regarding the principle of culpability, the Issuer states that “(…) the principles governing criminal law must also govern sanctioning administrative law (…). In that sense, it must be taken into consideration that the principle of culpability, according to which for the imposition of a sanction for the verification of an infraction, intent or at least negligence must be required, excluding any sanction of an objective nature. The Issuer cites as a reference the judgment issued by the Constitutional Court, in Case No. 2868-20041AA/TC, which states:

“(…). A limit to the State's sanctioning power is represented by the principle of culpability. From this point of view, the sanction (…) can only be based on the verification of subjective responsibility of the infringing agent (…). In that sense, it is not constitutionally acceptable for a company to be sanctioned for an act or omission of a legal duty that is not attributable to it.”

Electronic document digitally signed within the framework of Law No. 27269, Law on Signatures and Digital Certificates, its Regulations and amendments. The integrity of the document and the authorship of the signature(s) can be verified at https://apps.firmaperu.gob.pe/web/validador.xhtml

v) For this reason, the Issuer indicates that for the imposition of a sanction in the context of an administrative sanctioning proceeding, it is not enough to verify compliance with the principle of causality, but also compliance with the principle of culpability. In the present case, the Issuer states that it proceeded to regularize the information of the material fact regarding the appointment of its Audit Firm within a period of less than 48 hours, which shows a diligent attitude, and the absence of intent in its conduct; consequently, in application of the principle of culpability, it should not be sanctioned.

vi) By virtue of the foregoing, the Issuer states that the regularization of the Material Fact has not constituted a significant or substantial violation of the purpose of the Securities Market Law - LMV.

vii) On the other hand, the Issuer states the criteria that must be taken into account to evaluate the sanction to be imposed, as follows:

The Issuer has no prior record within the period indicated in the Sanctions Regulations, approved by SMV Resolution No. 035-2018-SMV/01 (hereinafter, Sanctions Regulations).
The imputed infraction does not constitute recidivist conduct in accordance with the provisions of the Sanctions Regulations.
In relation to the circumstances of the commission of the infraction, as soon as the Issuer detected the material error in its report of the material fact of 22 March 2022, it proceeded to carry out the respective regularization (24 March 2022). In that sense, less than forty-eight (48) hours elapsed from the original report and the regularization.
In relation to the harm caused and the repercussion on the market, we consider that the impact was minimal for the reasons set forth. Likewise, it must be taken into consideration that the Issuer carried out the corresponding regularization, without there being a request from the SMV.
It has not meant the obtaining of an illegal benefit.
The probability of detection is high since the Issuer proceeded to carry out the regularization promptly, so the SMV is aware of the company's conduct.
No serious harm to the public interest has been caused. The shareholders are companies of GEB and the regularization carried out by the Issuer occurred within a period of less than forty-eight (48) hours, so the potential impact on market transparency would be minimal.
There has been no intentionality aimed at making an incorrect report, since upon identifying the need to make the clarification, it proceeded to regularize the material fact reported.

By virtue of the foregoing, the Issuer considers that, in application of the criteria contained in the TUO of the LMV and the Single Ordered Text of the General Administrative Procedure Law, approved by Supreme Decree No. 004-2019-JUS (hereinafter, TUO of the LPAG), developed in the Sanctions Regulations, the

imposition of a sanction, however, in the hypothetical and denied case that the contrary were considered, the sanction to be imposed should be a reprimand;

6. That, through the TUO of the LPAG, which 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, points out 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 asset, (d) The economic harm caused, (e) The 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 charges formulated 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, through Official Letter No. 1515-2024-SMV/11 of 16 April 2024, the Report was sent to the Issuer, so that it may formulate its allegations within the term of five (5) business days, which have not been presented;

III. ISSUES TO BE DETERMINED

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

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

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

IV. ANALYSIS

4.1 Applicable regulations

Material facts

10. That, regarding the obligation to communicate material facts, 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, where 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”. (Underline added);

11. That, it is appropriate to indicate that numeral 5.1 of article 5 of the Regulation of Material Facts and Reserved Information,

approved by SMV Resolution No. 005-2014-SMV/01 (hereinafter, Regulation of Material Facts) states the following: “5.1. In the Annex that forms part of this Regulation, an enunciative list of facts, acts, agreements and decisions is included, whose purpose is to facilitate 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.”;

12. That, in accordance with the foregoing, numeral 11 of Annex 1 of the Regulation of Material Facts establishes that the following constitute material facts: “Appointment and termination of contract with its audit firm.” (Underline added);

13. That, consequently, numeral 9.1 of article 9 of the Regulation of Material Facts would have been breached, which states that “The Issuer must inform 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 (…)”. (Underline added);

14. That, the breach in the timely presentation of material facts is typified in subsection 3.1 of numeral 3 of Annex I of the Regulation of Sanctions, which states that it constitutes a minor infraction: “Presenting outside the established term, or doing 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 Stock 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 facts and annual reports.” (Underline added);

15. That, in accordance with article 35 of the Regulation of Sanctions, said infraction is sanctionable with a reprimand or a fine of not less than one (1) UIT and up to twenty-five (25) UIT;

4.2 Evaluation of the case

16. That, in administrative file No. 2023037221, which contains the documentation of the present PAS, it is observed that through Memorandum No. 3232-2022-SMV/11.1 of 21 July 2022 (File No. 2022029924), the General Superintendence of Conduct Supervision (hereinafter, IGSC) —an organ of the Superintendence of the Securities Market – SMV which has among its functions and powers, the supervision of compliance with the rules applicable to issuers with securities registered in the Public Registry of the Securities Market - RPMV, evaluating the indications of possible infractions, and remits, for its consideration, the respective reports of indications of infraction, to the IGCC—, remitted to the IGCC, the result of its evaluation, and specifically what refers to the present case;

17. That, it must be borne in mind that the procedures and legal forms with which the IGSC conducts its inspection and/or supervision activity and upon concluding it with a report of indications of infringement, determine that its pronouncement or opinion on a specific supervision matter —which may even

Electronically signed document digitally signed under the framework of Law No. 27269, Law on Signatures and Digital Certificates, its Regulations and amendments. The integrity of the document and the authorship of the signature(s) can be verified at https://apps.firmaperu.gob.pe/web/validador.xhtml

may even contain a decision, such as, for example, the adoption of corrective measures—, is an opinion on the merits of the matter; it being necessary to specify that said opinion and the IGSC's report of indications of infringement are not binding on the IGCC, as established in the second paragraph of Article 9 of the Sanctions Regulations23;

18. That, in this way, it follows that in the evaluation of the facts related to the present PAS, two (2) other administrative bodies of the Superintendency of the Securities Market – SMV, functionally independent from each other and from this Office, have intervened and participated prior to the issuance of this Resolution; first the IGSC, which in due course reported the indications of infringement, and then the IGCC, which, as a result of its evaluation, formulated the Statement of Charges and the Report; and at this point of the PAS, it corresponds to the Office of the SASCM to issue a pronouncement containing its decision regarding the aforementioned charges, it being necessary to state that, by its nature, as previously indicated, it will be a decision of a single administrative instance;

19. That, prior to the analysis of the arguments presented by the Issuer, it must be noted that the formulation of the charges was based on the untimely communication of the material fact referring to the appointment of its audit firm for fiscal year 2022;

20. That, in relation to the arguments presented by the Issuer, the following must be stated:

(i) The Issuer has stated in its arguments that, on 22 March 2022, it reported as a material fact the appointment of the external auditor for fiscal year 2022, approved during the General Shareholders' Meeting held on the same date. However, due to a material error, on 24 March 2022, by way of regularization of the previous material fact, the Issuer clarified that the firm appointed as External Auditor was Caipo y Asociados S. Civil de R.L., belonging to the KPMG group. In that sense, the Issuer maintains that it has complied

[2] Article 245 of the TUO of the LPAG states as forms or modes in which the inspection activity could be concluded the following: 1) Record of conformity of the activity carried out by the administered party; 2) Recommendation of improvements or corrections to the activity carried out by the administered party; 3) The warning of the existence of non-compliances not susceptible of warranting the determination of administrative responsibilities; 4) The recommendation to initiate a procedure in order to determine the corresponding administrative responsibilities; 5) The adoption of corrective measures and 6) Other forms as established by special laws.

[3] «Article 9.- PRELIMINARY INQUIRIES AS A CONSEQUENCE OF SUPERVISION ACTIONS (…) When said bodies conclude that there are sufficient indications of possible administrative infringements, they refer the corresponding reports to the General Compliance Intendancies, which determine whether or not to initiate an administrative sanctioning procedure. If applicable, the General Compliance Intendancies may carry out additional inspections or investigations of the reported indications. In the case of possible infringements in the scope of the Regulation of the Financial Participatory Financing Activity and its Managing Companies, the preliminary inquiries are carried out by the General Intendancy of Research and Innovation, a dependency that, if there are sufficient indications of possible administrative infringements, will determine whether or not to initiate an administrative sanctioning procedure. (…)».

with the provisions of numeral 9.1 of Article 9 of the Regulation of Material Facts.

(ii) On the matter, it is necessary to emphasize that, although the Issuer communicated on 22 March 2022 as a material fact the appointment of its audit firm for fiscal year 2022, said communication was not made completely. This was evidenced when, on 24 March 2022, a regularization was made to the material fact of 22 March 2022, specifying that Caipo y Asociados S. Civil de R.L., a member of KPMG, had been appointed as audit firm. This period of two (2) calendar days of delay in the rectification constitutes a lack of timeliness in the communication. Consequently, the communication is considered untimely, since it should have been corrected immediately, as stipulated in subsection 12.1 of Article 12 of the Regulation of Material Facts. Therefore, the Issuer did not comply with the provisions of numeral 9.1 of Article 9 of the Regulation of Material Facts, by not communicating the aforementioned material fact completely and timely on the same day of its occurrence.

(iii) On the other hand, in relation to the Issuer's argument that the Principle of Informality, used by entities such as the SMV, to prevent harm to the administered party due to curable formal issues, without affecting third-party rights or the public interest, and by way of example, cites Superintendencia Adjunta SMV Resolution No. 044-2023-SMV/11 of 20 April 2023; it should be noted that the Issuer has the obligation to fully and timely report the material fact regarding the appointment of its audit firm, which implies that the audit firm approved by the general shareholders' meeting must be indicated, as provided in articles 3 and 4 of the Regulation on Material Facts and item 11 of Annex 1 of said regulation, since it is in the interest of investors to have such information and, above all, for market transparency, which did not occur in the present case, because in the material fact of 22 March 2022 the name of the audit firm was not indicated, which was only completed by means of the material fact of 24 March 2022.

(iv) In that sense, it is not a formal matter that can be cured, since in cases of late submission of periodic or occasional information, such as the present PAS, literal c) of article 28 of the Sanctions Regulation provides in which cases voluntary curing does not apply as an exemption from liability, including among them: “The late or incomplete submission, or the non-submission of material facts, financial information and annual reports”. (Highlighting and underlining added).

(v) Consequently, in accordance with the aforementioned regulations, the Issuer's argument that it cured the infringing conduct after noticing the material error is not admissible, since voluntary curing does not apply in cases of incomplete and late submission of material facts, among others, in accordance with the provisions of literal c) of article 28 of the Sanctions Regulation.

(vi) Likewise, in relation to Superintendencia Adjunta SMV Resolution No. 044-2023-SMV/11 of 20 April 2023 mentioned by the Issuer; it should be noted that it is not applicable to the present case, since the fact of

Electronic document digitally signed within the framework of Law No. 27269, Law on Signatures and Digital Certificates, its Regulation and amendments. The integrity of the document and the authorship of the signature(s) can be verified at https://apps.firmaperu.gob.pe/web/validador.xhtml

material fact under evaluation in the referred resolution was communicated completely and timely, only that it had not been communicated using the structured format, which was subsequently regularized, which is why the Principle of Informality4 was applied, because the market had timely become aware of the material fact, unlike the present case, in which the Issuer did not communicate the material fact completely or timely. Therefore, there has been no affectation or violation of the Principle of Informality.

(vii) In accordance with the aforementioned rule, the Issuer's statement that it remedied the violation subject to charges is incorrect, because it is not possible under the rules to remedy the violation regarding the out-of-time submission of the material fact concerning the designation of its auditing firm, which should have been reported on 22 March 2022; however, it was reported on 24 March 2022.

(viii) On the other hand, regarding the Issuer's argument that, in accordance with the Principle of Culpability, no sanction should be imposed on it, since it acted diligently by regularizing the information on the designation of its Auditing Firm in less than 48 hours, which suggests an absence of intent in its conduct; it must be indicated that the out-of-time reporting of material facts constitutes an objective violation, for which it is sufficient that the infringing conduct has been committed, without any assessment of the intent of the regulated entity, since it is the obligation of issuers to report their material facts in a complete and timely manner in order to avoid any possible harm to transparency in the market, a legal interest protected by the SMV.

(ix) Likewise, regarding the Issuer's arguments that the harm to the transparency of the securities market was minimal and that it caused no damage to third parties or to the public interest, it must be indicated that such arguments will be evaluated at the time of determining the sanction.

(x) In the same vein, with respect to the Issuer's defense in which it requests that the evaluation criteria set forth in the LMV, as well as in the numeral TUO of the LPAG, be taken into account, it must be noted that these aspects will be analyzed at the time of determining the sanction;

(xi) Likewise, it is recorded that, although Article 38 of the Financial Information Regulation was amended by the Fifth Supplementary Amending Provision of SMV Resolution N° 013-2023-SMV/01, which approved the Standards on the Preparation, Presentation and Dissemination of Financial Statements, Annual Report

[4] “Article IV. Principles of the administrative procedure 1. The administrative procedure is fundamentally based on the following principles, without prejudice to the validity of other general principles of Administrative Law: (…) 1.6. Principle of Informalism.- Procedure rules must be interpreted in a manner favorable to the admission and final decision of the claims of regulated entities, so that their rights and interests are not affected by the requirement of formal aspects that can be remedied within the procedure, provided that such excuse does not affect the rights of third parties or the public interest. (…)”.

Electronic document digitally signed within the framework of Law N° 27269, Law on Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and the authorship of the signature(s) can be verified at https://apps.firmaperu.gob.pe/web/validador.xhtml

and Management Report applicable to the entities supervised by the Superintendency of the Securities Market, which had the effect of eliminating the deadline for Issuers to report the designation of their independent auditors (which prior to the amendment was 30 June of each year), it must be clear that the obligation to submit the material fact still remains, which must be carried out within the period indicated in Article 9 of the Sanctions Regulation, that is, on the date on which the designation of the auditing firm was agreed; which did not occur within the specific period, since the material fact should have been reported on 22 March 2022, the date on which the aforementioned designation was approved at the Universal Shareholders' Meeting; however, it was reported by means of a material fact dated 24 March 2022 (File N° 2022011624).

21. That, in accordance with all of the above, having verified that the Issuer has committed one (1) conduct constituting a violation, by failing to timely report the designation of its auditing firm for the 2022 fiscal year, the applicable sanction will be determined, for which purpose the principle of reasonableness and the sanction criteria set forth in Article 344 of the TUO of the LMV, in Article 25 of the Sanctions Regulation, and the provisions of numeral 3 of Article 248 of the TUO of the LPAG will be taken into consideration, which will be developed in the following section;

V. DETERMINATION OF THE SANCTION

22. That, having determined the commission of the violation, it is appropriate to determine the sanction by evaluating the Criteria applicable to the administrative sanctioning procedure for non-compliance with the rules governing the submission of periodic or occasional information, approved by SMV Resolution N° 006-2012-SMV/01 (hereinafter, Special Sanction Criteria); in accordance with Article 25 of the Sanctions Regulation and the criteria for the gradation of the sanction established in numeral 3) of Article 248 of the TUO of the LPAG and Article 344 of the TUO LMV;

23. That, however, it must be indicated that Article 1 of Resolution N° 007-2023-SMV/01 of 4 September 2023 approved the Regime of Graduated Sanctions for the Out-of-Time Submission of Financial Information, Annual Report and Material Facts (hereinafter, New Regime of Graduated Sanctions), whose Article 4 provided for its entry into force as of 1 January 2024; and Article 2 of the aforementioned Resolution repeals the Special Sanction Criteria;

24. That, in accordance with the foregoing, considering that the regulations have been modified during the processing of the PAS, it is necessary to analyze whether in the present case the provisions of the New Regime of Graduality of Sanctions shall be applied by virtue of the Principle of Favorable Retroactivity, established in item 5 of article 248 of the TUO of the LPAG, which states that: "(...) the sanctioning provisions in force at the time the administered party incurs the conduct to be sanctioned are applicable, unless the subsequent ones are more favorable to them";

25. That, in that sense, for the purposes of determining whether a warning or fine sanction is appropriate, the aforementioned rules are in accordance with the provisions of item 3) of article 248 of the TUO of the LPAG and article 344 of the TUO of the LMV, which develop the criteria for the graduality of sanctions: (i) the sanction history of the issuer, (ii) recidivism, (iii) the circumstances of the commission of the infringement, (iv) the economic damage caused and its impact on the market, (v) the illicit benefit resulting from the commission of the infringement, (vi) the probability of detection of the infringement, (vii) the severity of the damage to the public interest and/or protected legal asset and (viii) the existence or not of intentionality in the conduct of the infringer;

26. That, in relation to the severity of the damage to the public interest and/or protected legal asset, it is relevant to point out that in relation to the severity of the damage to the public interest and/or protected legal asset, it must be indicated that the timely submission of periodic or occasional information by issuers of securities registered in the RPMV constitutes a fundamental obligation in the transparency of the securities market, so that market participants can make their investment decisions properly informed. Consequently, although no severity of damage to the public interest is evidenced, the failure to comply with the obligation to inform the market within the time limits by the issuers affects the transparency of the market, which is considered a protected legal asset;

27. That, in relation to the history of the infringer, it is established that the history of the infringer consists of the sanctions imposed on it by the SMV that became final within the four (4) years prior to the moment of the commission of the infringement to be sanctioned. In application of said criterion, it has been verified that the Issuer has (1) sanction history, having been sanctioned for the same type of infringement, by means of the resolution detailed below:

28. That, regarding recidivism for the commission of the same infringement, it must be pointed out that letter b) of article 25 of the Sanctions Regulations establishes that 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. In this regard, from the verification carried out in the SMV Sanctions System, it has been noted that the Issuer is not a recidivist;

29. That, in relation to the circumstances of the commission of the infraction, it must be noted that it has been verified that the Issuer has

communicated late the material fact regarding the appointment of its audit firm for fiscal year 2022, which was approved on 22 March 2022, and should have been communicated on the same day of its approval; however, it was communicated through a material fact on 24 March 2022, that is, with a two (2) calendar day delay;

30. That, in relation to the economic harm caused and its impact on the market, it must be noted that there is indeed harm that affects the market because the failure to disseminate relevant information such as material facts in a timely manner affects the transparency of the securities market, which is considered a protected legal interest;

31. That, in relation to the illicit benefit resulting from the commission of the infraction, it should 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 infractions under evaluation;

32. That, in relation to the Probability of detection of the infraction, it must be noted that the failure to timely submit periodic or occasional information is verified through internal control systems, so the probability of detection is high;

33. That, in relation to the existence or not of intent in the conduct of the offender, it can be noted that there are not sufficient elements to indicate that the Issuer acted with intent in the commission of the infractions, so this criterion would not have been met. However, it should be noted that although there is no evidence to indicate that the Issuer acted with intent, it can be affirmed that the Issuer's conduct was negligent, by not having acted with the required diligence regarding obligations already known to the Issuer;

On the application of the warning sanction

34. That, in this regard, in relation to the sanction to be proposed, it is noted that subsection (ii) of numeral 4.2 of the Special Sanction Criteria describes as a guideline for the application of the warning sanction, the concurrence of the following assumptions: “(i) the effect on market transparency is minimal; ii) the infraction committed has not caused a concrete harm to investors or associates; (iii) the offender has no prior record or, if having one, it involves infractions classified as minor offenses imposed in the four (4) years prior to the commission of the infraction being evaluated; (iv) the offender has not obtained a benefit from its illegal conduct; and (v) it has not been proven that the offender acted with intent in the commission of the infraction.”;

35. That, it should be noted that these guidelines for the application of the warning sanction are also set forth in subsection 6.1 of article 6 of the New Regime of Gradualness of Sanctions under the same terms, except for what refers to the prior record and recidivism of the offender set forth in the new rule as follows: “a. When the effect on market transparency is minimal. This statement is linked to the criterion of the severity of the damage to the public interest and/or protected legal interest; b. The infraction committed has not caused a concrete harm to investors or associates; c. The offender has no prior record or, if having one, it involves sanctions corresponding to

minor infractions imposed by the SMV that have become final in the four (4) years prior to the commission of the infraction being evaluated; d. The offender is not a recidivist; e. The offender has not obtained benefits from its administrative infraction; and, f. It has not been proven that the offender acted with intent in the commission of the infraction.”;

36. That, considering the foregoing and taking into account the regulatory amendments that occurred during the processing of this PAS, in accordance with the Principle of Favorable Retroactivity, and as mentioned above, it is appropriate to apply the sanctioning provisions in force at the time the administrated party incurred in the conduct subject to sanction, since the subsequent provisions are not more favorable;

37. That, consequently, in the present case the infringement committed has not caused a specific harm to investors, the Issuer is not a repeat offender and only has a record of minor infractions, has not obtained illicit benefits from its administrative infraction nor has it been proven that it acted with intent in the commission of the infraction, and although there was an impact on the transparency of information, this was minimal; reasons for which this Deputy Superintendency considers that a warning sanction should be applied; therefore it has been verified that the infraction subject to charge simultaneously meets the conditions established in subsection ii) of numeral 4.2 of the Special Sanction Criteria, in force at the time of the commission of the infraction;

38. That, in that sense, this Deputy Superintendency imposes on the Issuer a sanction of one (1) warning for having communicated in an untimely manner the material fact regarding the appointment of its audit firm for the 2022 fiscal year;

39. That, the Issuer is reminded that final resolutions of sanctions imposed by competent authorities must be reported as material facts, within the framework of the provisions of article 5 of the Regulation on Material Facts, and;

In accordance with the provisions of numerals 14 and 36 of article 43 of the Regulation of Organization and Functions of the Superintendency of the Securities Market, approved by Supreme Decree No. 216-2011-EF;

RESOLVES:

Article 1.- To declare that Dunas Energía S.A.A. has incurred in one (1) infraction of a minor nature, classified in subsection 3.1 of numeral 3 of Annex I of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01, for having communicated in an untimely manner the material fact regarding the appointment of its audit firm for the 2022 fiscal year.

Article 2.- To sanction Dunas Energía S.A.A. with one (1) warning, as provided in article 1 of this Resolution.

Article 3.- This Resolution does not exhaust the administrative remedy, and may be challenged before this Deputy Superintendency of Supervision of Market Conducts by filing a motion for reconsideration, an administrative remedy 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 period of fifteen (15) business days counted from the day following its notification, as it is a single-instance administrative procedure.

Article 4.- In the event that this Resolution is not subject to challenge, it must be published on 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.- To transcribe this Resolution to Dunas Energía S.A.A.

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

Resolution No. 029-2024-SMV/11 Sanctioning Dunas Energía S.A.A. with a Reprimand for Late Disclosure of the Appointment of Its External Auditor