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

Superintendent Resolution No. 119-2024-SMV/02

Lima, 26 September 2024

The Superintendent of the Securities Market

WHEREAS:

File No. 2024000452 and Report No. 1053-2024-SMV/06 of the Legal Advisory Office, by which it issues an opinion on the appeal filed by Fonbienes Perú EAFC S.A. (hereinafter, FONBIENES);

CONSIDERING:

That, by Deputy Superintendent Resolution SMV No. 009-2024-SMV/10 (hereinafter, the SANCTION RESOLUTION), the Deputy Superintendency of Prudential Supervision (hereinafter, SASP) sanctioned FONBIENES with a fine of ten (10) UIT for having incurred thirty-four (34) infractions of a minor nature classified in Annex I, numeral 3, subsection 3.6 of the Sanctions Regulations, approved by SMV Resolution No. 035-2018-SMV/01, hereinafter SANCTIONS REGULATIONS, for failing to comply with the provisions of articles 721, 74,2 1403 and 1414 of the Regulations of the Collective Funds System and their Collective Fund Management Companies, approved by SMV Resolution No. 020-2014-SMV/01 and its amendments, as well as the Manual of Technical Specifications for the submission to the SMV of information from Collective Fund Management Companies, approved by Superintendent Resolution No. 102-2016-SMV/025, by not

[1] “Article 72.- Obligation to submit information The Management Company is obliged to submit any information established by regulation or required by the SMV, in accordance with the technical specifications and other regulations issued in this regard, under the means, forms and at the time established by the SMV.” (Underline added)

[2] “Article 74.- Information on managed Collective Funds The Management Company must submit to the SMV the following: (…) c) Information established in the technical specifications. (…) The form and deadlines, if applicable, for the submission of the information referred to in the preceding subsections shall be those established in the technical specifications.” (Underline added)

[3] “Article 140.- Annual Work Plan Before January 15 of each year, the Management Company must submit to the SMV the Annual Work Plan that the internal control officer will carry out during that year, which must have been approved by its board of directors. (…).” (Underline added)

[4] “Article 141.- Reports Each year the internal control officer must prepare four (4) quarterly reports, which will be submitted to the SMV within thirty (30) calendar days after the end of each quarter. (…)” (Underline added)

[5] Numeral 2 “INFORMATION FILES TO BE SUBMITTED TO THE SMV”, of the MANUAL establishes: “2.2. CONTRACT SALE AND ASSIGNMENT FILE (CON) The EAFC shall report in this file the registration of all contracts corresponding to the members of the groups reported in the SIT file, whether these groups are new or already reported. (…) Submission frequency: Up to five days5 after an assembly is held each time there are new contracts to report and always prior to the submission of the SIT file. (…)”. “2.3. MEMBER STATUS FILE (SIT) The payment status of all members of a group must be sent as of the date on which the members' assembly was held. (…) Submission frequency: Up to five (5) days after an assembly is held. (…)”. “2.4. AWARD FILE (ADJ) In this file, the awarded members - of a group - must be reported as of the date on which the members' assembly was held.

PERU Ministry of Economy and Finance
SMV
Superintendency of the Market of Securities

“Decade of Equal Opportunities for Women and Men” "Year of the Bicentennial, of the consolidation of our Independence, and of the commemoration of the heroic battles of Junín and Ayacucho"

to submit in a timely manner, in accordance with the technical specifications, information files on the collective fund system; the 2020 Annual Work Plan and the Quarterly Report of the Internal Control Officer corresponding to the second quarter of 2020;

That the non-compliances were generated by not submitting the following information within the deadlines indicated by the regulations:

No.	STRUCTURED FILE AND OTHERS	CUT-OFF DATE	SUBMISSION DEADLINE	INFORMATION SUBMISSION
				FILE	DATE
1	DELIVERY OF GOODS OR SERVICES	30/04/2020	31/08/2020	2020036531	14/10/2020
2	DELIVERY OF GOODS OR SERVICES	31/08/2020	7/09/2020	2020036516	14/10/2020
3	GUARANTEES OF THE ADMINISTRATOR	30/06/2020	31/08/2020	2020028141	6/10/2020
4	STATISTICAL INFORMATION OF THE COLLECTIVE FUNDS SYSTEM	31/07/2020	31/08/2020	2020037189	19/10/2020
5	STATISTICAL INFORMATION OF THE COLLECTIVE FUNDS SYSTEM	31/08/2020	7/09/2020	2020037194	19/10/2020
6	FINANCIAL INFORMATION OF THE SYSTEM	30/06/2020	31/08/2020	2020034192	28/09/2020
7	FINANCIAL INFORMATION OF THE SYSTEM	31/07/2020	31/08/2020	2020035596	6/10/2020
8	OPERATIONAL FLOW BY GROUP	22/05/2020	31/08/2020	2020035015	1/10/2020
9	OPERATIONAL FLOW BY GROUP	6/06/2020	31/08/2020	2020034192	13/10/2020
10	OPERATIONAL FLOW BY GROUP	17/07/2020	31/08/2020	2020036538	14/10/2020
11	OPERATIONAL FLOW BY GROUP	6/08/2020	7/09/2020	2020036562	14/10/2020
12	AWARDS	6/03/2020	13/03/2020	2020036191	13/10/2020
13	ADJUDICATIONS	10/03/2020	31/08/2020	2020018385	12/10/2020
14	ADJUDICATIONS	11/03/2020	31/08/2020	2020036269	13/10/2020

(…) Submission frequency: Up to five (5) days after an assembly is held. (…)”.

“2.5. GOODS OR SERVICES DELIVERY FILE (ENT)

This file must report the delivery status of an awarded good and/or service, for all groups administered by the EAFC, for each member that has been awarded.

(…) Submission frequency: Up to five (5) days after each month-end close. (…)”.

“2.8. OPERATIONAL FLOW FILE BY GROUP (FOG)

This operational flow file is monthly and must report the amounts according to the type of currency assigned to the program as of the month-end close date.

Submission frequency: Up to five (5) days after each month-end close. (…)”.

“2.9. ADMINISTRATOR’S GUARANTEES FILE (GFC)

This information will be used to calculate the minimum amount of guarantees that EAFCs must hold in custody with the SMV. The amounts are expressed in the currency established by the EAFC to keep the accounting of the Collective Fund. The cut-off dates are 30 June and 31 December of each year and the submission deadline is 5 August and 5 February of each year. Submission frequency: Semiannual. (…)”.

“2.12. SYSTEM FINANCIAL INFORMATION FILE (EFE)

This file reports the System’s Balance Sheet and Cash Flow. (…)”. Submission frequency: Thirty (30) calendar days after each month-end close. (…)”.

“2.13. COLLECTIVE FUNDS SYSTEM STATISTICAL INFORMATION FILE (IES)

This file must report the main variables of the collective funds system administered by the EAFC. The detail of this file will be by subprogram.

Submission frequency: Up to five (5) days after each month-end close. (…)”.

Electronic document di gitally signed within the framework of Law No. 27269, Law on Di gital Signatures and Certificates, its Regulation and amendments.
The integrity of the document and the authorship of the( s) si gnature( s) can be verified at https://apps.fi rmaperu.gob.pe/web/validador.xhtml

15	ADJUDICATIONS	22/05/2020	31/08/2020	2020018388	13/10/2020
16	ADJUDICATIONS	17/06/2020	31/08/2020	2020021096	13/10/2020
17	AWARDS	18/06/2020	31/08/2020	2020021251	13/10/2020
18	AWARDS	17/07/2020	31/08/2020	2020036334	14/10/2020
19	AWARDS	6/08/2020	31/08/2020	2020028039	13/10/2020
20	AWARDS	18/08/2020	25/08/2020	2020036424	14/10/2020
21	AWARDS	19/08/2020	26/08/2020	2020036588	14/10/2020
22	AWARDS	8/09/2020	15/09/2020	2020032943	14/10/2020
23	STATUS OF ASSOCIATES AND AWARDS	17/06/2020	31/08/2020	2020021096	12/10/2020
24	STATUS OF ASSOCIATES AND AWARDS	17/07/2020	31/08/2020	2020036334	13/10/2020
25	STATUS OF ASSOCIATES AND AWARDS	6/08/2020	31/08/2020	2020028039	13/10/2020
26	STATUS OF ASSOCIATES AND AWARDS	18/08/2020	25/08/2020	2020036424	14/10/2020
27	SITUATION OF ASSOCIATES AND AWARDS	19/08/2020	26/08/2020	2020036588	14/10/2020
28	SITUATION OF ASSOCIATES AND AWARDS	8/09/2020	15/09/2020	2020032943	9/10/2020
29	SALE OF CONTRACTS AND ASSIGNMENTS	6/08/2020	31/08/2020	2020028039	13/10/2020
30	SALE OF CONTRACTS AND ASSIGNMENTS	8/09/2020	15/09/2020	2020032943	9/10/2020
31	STATISTICAL INFORMATION OF THE COLLECTIVE FUNDS SYSTEM	31/12/2020	8/01/2021	2021002281	21/01/2021
32	DELIVERY OF GOODS OR SERVICES	31/12/2020	8/01/2021	2021002272	21/01/2021
33	ANNUAL WORK PLAN PERIOD 2020	-	14/01/2020	2021002412	20/01/2021
34	QUARTERLY REPORT OF THE FCP (SECOND SEMESTER 2020)	-	31/08/2020	2020034124	28/09/2020

That, by written submission presented on 20 March 2024, FONBIENES filed an appeal against the SANCTION RESOLUTION;

That, by means of Official Letter No. 3530-2024-SMV/14, Report No. 1053-2024-SMV/06 of the Legal Advisory Office (hereinafter, OAJ) was sent to FONBIENES, which contains the legal opinion on the appeal, (hereinafter, REPORT); and a period of five (5) business days was granted to submit its arguments, if it deemed it pertinent;

That, by written submission presented on 20 August 2024, FONBIENES submitted its arguments to the SMV (hereinafter, ARGUMENTS);

I. ARGUMENTS OF THE APPEAL AND OF THE ARGUMENTS

That, below, the arguments contained in the appeal filed by FONBIENES, as well as in its ARGUMENTS, are succinctly set forth;

That, regarding the evaluation of the sanction, FONBIENES states that the SMV must take into account the evaluation criteria set forth in article 7 of Decreto Ley N° 21907, modified by Ley N° 276596; and in article 257 of the SANCTIONS REGULATIONS, in accordance with the criterion of reasonableness

[6] It should be noted that the administrated party referred to “Ley 2765940”; however, a material error is presumed because Decreto Ley N° 21907 was modified by Ley N° 27659, published on 07 February 2002.

[7] “Article 25.- SANCTION CRITERIA Administrative sanctions imposed must take into account the following criteria:

Electronic document fi rmado digitally within the framework of Law No. 27269, Law of Fi rmas and Digital Certificates, its Regulation and amendments.
The integrity of the document and the authorship of the( s) fi rma( s) can be verified at https://apps.fi rmaperu.gob.pe/web/validador.xhtml

provided in numeral 3 of article 230 of Law No. 27444, General Administrative Procedure Law8, hereinafter LPAG; and the mitigating and exonerating circumstances of responsibility regulated in articles 269 and 2710 of the SANCTIONS REGULATION, in accordance with the provisions of article 236-A of the LPAG11;

That, in addition, FONBIENES states that the SMV must consider that the non-compliances were generated by the context of the health emergency that the entire country was going through, which implied extraordinary challenges and difficulties, which despite its best efforts meant the slowing down of internal processes; which must be taken into account in order to diminish or reduce the minimum fine imposed by 50% or a minimum fine, because FONBIENES has complied with adhering to article 26 of the SANCTIONS REGULATION;

a) Antecedents, for firm sanctions imposed by the SMV within the term of four (4) years prior to the commission of the infraction to be sanctioned. The commission of the same infraction in the year prior to the infraction to be sanctioned is not considered an antecedent.

b) Recidivism, for the commission of the same infraction, that firm 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.

c) Circumstances of the commission of the infraction.

d) Economic harm caused and its repercussion on the market.

e) Illicit benefit resulting from the commission of the infraction.

f) Probability of detection of the infraction.

g) Severity of the damage to the public interest and/or protected legal interest.

h) Existence or not of intentionality in the conduct of the offender.

When, from the evaluation of the aforementioned criteria, it is noted that there is no proportionality between the sanction to be imposed and the imputed facts, by exception and through a reasoned resolution, a sanction corresponding to a lower classification than the one provided may be imposed".

[8] "Article 230.- Principles of the administrative sanctioning power The sanctioning power of all entities is additionally governed by the following special principles: (...) 3. Reasonableness. - The authorities must foresee that the commission of the sanctionable conduct is not more advantageous for the offender than complying with the infringed norms or assuming the sanction. However, the sanctions to be applied must be proportional to the non-compliance qualified as an infraction, observing the following criteria that are indicated for the purposes of their gradation: 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 interest; d) The economic harm caused; e) Recidivism, for the commission of the same infraction within the term of one (1) year from when the resolution that sanctioned the first infraction became firm. f) The circumstances of the commission of the infraction; and g) The existence or not of intentionality in the conduct of the offender. (art. 248 of the TUO of the LPAG)"

[9] "Article 26.- MITIGATING CIRCUMSTANCES OF RESPONSIBILITY FOR INFRACTIONS The following constitute mitigating conditions of responsibility for infractions: a) Recognition of responsibility by the offender expressly and in writing, once the administrative sanctioning procedure has begun. When the applicable sanction is a fine, it is reduced, taking into account the following: 1. If the recognition of the infraction is presented within the term granted for the presentation of defenses, the reduction amount shall be fifty percent (50%). 2. If the recognition is presented after the expiration of the term granted for the presentation of defenses and before the expiration of the term granted to formulate allegations to the instruction report, the reduction amount shall be thirty percent (30%). 3. If the recognition is presented after the expiration of the term granted to formulate allegations to the instruction report and up to before the issuance of the sanction resolution, the reduction amount shall be ten percent (10%). The recognition of responsibility regarding an infraction must be made precisely, concisely, clearly, expressly and unconditionally, and must not contain ambiguous or contradictory expressions; otherwise, it will not be understood as a recognition. If defenses are presented, despite having made a recognition of responsibility, it will be understood as a non-recognition, and the authority shall proceed to evaluate the defenses. b) Contribution of the offender for the clarification of the infraction. c) The correction made after its requirement or the beginning of the administrative sanctioning procedure".

[10] “Article 27.- EXEMPTING CONDITIONS OF LIABILITY FOR INFRINGEMENTS The following constitute exempting conditions of liability for infringements: a) Fortuitous event, force majeure or another exceptional situation that, in the opinion of the SMV, is comparable to duly proven fortuitous event or force majeure. b) Acting in compliance with a legal duty or the legitimate exercise of a right of defense. c) Mental incapacity duly proven by the competent authority, provided that it affects the aptitude 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 the LPAG and provided that no communication demanding compliance with the obligation has been sent.”

[11] “Article 236.- Exempting and mitigating conditions of liability for infringements 1.- The following constitute exempting conditions of liability for infringements: a) Duly proven fortuitous event or 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 aptitude 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 expressly and in writing acknowledges its responsibility. 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 rule”. (art. 257 of the TUO of the LPAG)

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

That, FONBIENES states regarding the sanction background that it does not record final sanctions imposed by the SMV, for facts similar to those imputed in the present administrative sanctioning procedure;

That, regarding the sanction criterion linked to recidivism, FONBIENES sustains that it does not “present sanctions for the commission of the same infringements (…) within the aforementioned term”;

That, in relation to the sanction criterion linked to the economic damage caused and its repercussion in the market, FONBIENES states that the infringements incurred did not cause a concrete economic damage to the associates participating in the collective funds market and did not have repercussion in it;

That, regarding the sanction criterion linked to the illicit benefit resulting from the commission of the infringements, FONBIENES states that it did not obtain any illicit benefit, as a result of having incurred the infringements under analysis;

That, FONBIENES states that there is no seriousness of the damage to the public interest and/or protected legal good;

That, regarding the ARGUMENTS presented by FONBIENES, it is noted that it reiterates that it acknowledged responsibility regarding the infringements imputed in the present administrative sanctioning procedure; consequently, it requests that the mitigating circumstance of literal a) of article 26 of the SANCTIONS REGULATION be applied;

That, in its ARGUMENTS, FONBIENES reiterates once again its request for reduction of the sanction imposed by 50%, that is to five (5) UIT (equivalent to S/ 21,500.00 Soles) or that a minimum fine be imposed;

That, through its ARGUMENTS, FONBIENES states that Report No. 213-2024-SMV/10.3 of 15 February 2024 of the General Superintendence of Prudential Compliance concludes that it is appropriate to reduce the sanction from ten (10) UIT to five (5) UIT for the commission of the thirty-four (34) infringements imputed;

That, in its ARGUMENTS, FONBIENES sustains that although it is stated in Consideration number 62 of the SANCTION RESOLUTION that the breach of the regulations on the timely presentation of periodic information affects transparency in the Collective Funds System, it is a damage that cannot be proven or assessed based on a simple supposition, no damage caused to its associates or to the general public having been proven, nor its repercussion in the market, since it has not been evidenced that the analyzed breaches have produced a complete quantifiable damage in the market;

That, through its ARGUMENTS, FONBIENES states that the mitigating condition referred to the correction made after its requirement, established in article 26, subsection c) of the SANCTIONS REGULATION, has been configured, given that through Official Letter No. 3290-2020-SMV/10.2 of 24 September 2020 and Official Letter No. 259-2021-SMV/10.2 of 20 January 2021, the SMV required FONBIENES to submit the information indicated in the preceding considerations, which was complied with by FONBIENES upon the requirement made;

II. ANALYSIS OF THE ADMISSIBILITY OF THE APPEAL

That, from the evaluation carried out, the appeal filed complies with the requirements established in articles 207, 209 and 21112 of the LPAG, and was filed within the term of fifteen (15) business days13 counted from the notification of the SANCTION RESOLUTION;

III. EVALUATION OF THE ARGUMENTS SET FORTH BY FONBIENES

That, in accordance with the provisions of article 7 of Decreto Ley N° 21907, a norm applicable to the Empresas Administradoras de Fondos Colectivos (EAFC), article 2514 of the REGLAMENTO DE SANCIONES, in accordance with article 230, numeral 315 of the LPAG, the statements made by FONBIENES in its appeal are analyzed;

That, with regard to the health emergency, it is noted that in recitals 33 to 50 of the SANCTION RESOLUTION, the SASP carries out an extensive and detailed evaluation of said circumstance. Without prejudice to the foregoing, it is verified that, in 20 of the 34 imputed facts, the SMV extended the deadline for submitting the information, precisely as a consequence of the health emergency situation resulting from the pandemic caused by the COVID-19 virus. However, despite this, FONBIENES did not comply with submitting the information in a timely manner, and when it did so, it was the result of the request made by the SMV. Likewise, it should be noted that the context of the health emergency implied a situation

[12] Reference is made to the articles of Ley N° 27444, Ley del Procedimiento Administrativo General (hereinafter, LPAG) and not to those of the Texto Único del Procedimiento Administrativo General, approved by Decreto Supremo N° 004-2019-JUS (hereinafter, TUO de la LPAG) because through Ley N° 31603 published on 5 November 2022 and Decreto Legislativo N° 1633 published on 30 August 2024, article 207 of the LPAG was modified and not the corresponding article of the TUO de la LPAG (art. 218), finally being drafted as follows: Artículo 207.- Recursos administrativos 207.1 Los recursos administrativos son: a) Recurso de reconsideración b) Recurso de apelación Solo en caso que por ley o decreto legislativo se establezca expresamente, cabe la interposición del recurso administrativo de revisión. 207.2 The period for filing appeals is fifteen (15) peremptory days, and they must be resolved within a period of thirty (30) days, with the exception of the reconsideration appeal, which is resolved within a period of fifteen (15) days. Exceptionally, in single-instance administrative proceedings under the jurisdiction of the governing boards of regulatory bodies, the reconsideration appeal is resolved within a period of thirty (30) days. Article 209.- Appeal The appeal shall be filed when the challenge is based on a different interpretation of the evidence produced or when it involves issues of pure law, and it must be addressed to the same authority that issued the challenged act so that it elevates the proceedings to the superior hierarchical authority. (art. 220 in the TUO of the LPAG) Article 211.- Requirements of the appeal The written appeal shall indicate the act being appealed and shall comply with the other requirements provided for in article 113.”

[13] The appealed resolution was notified on 28 February 2024 and the appeal was filed on 20 March 2024, within the established term.

[14] “Article 25.- SANCTION CRITERIA The administrative sanctions imposed must take into account the following criteria: a) Prior record, for final sanctions imposed by the SMV within the four (4) year period prior to the commission of the infringement to be sanctioned. The commission of the same infringement in the year prior to the infringement to be sanctioned shall not be considered a prior record. b) Recidivism, for the commission of the same infringement, the final sanction imposed by the SMV within the one (1) year period prior to the commission of the infringement to be sanctioned shall be taken into account. c) Circumstances of the commission of the infringement. d) Economic harm caused and its impact on the market. e) Illicit benefit resulting from the commission of the infringement. f) Probability of detection of the infringement. g) Severity of the harm to the public interest and/or the protected legal interest. h) Existence or not of intent in the conduct of the offender. When, from the evaluation of the aforementioned criteria, it is observed that there is no proportionality between the sanction to be imposed and the facts charged, by exception and by means of a reasoned resolution, a sanction corresponding to a lower classification than the one provided for may be imposed.”

[15] “Article 230.- Principles of the administrative sanctioning power (…) 3. Reasonableness. - The authorities must foresee that the commission of the sanctionable conduct does not prove more advantageous for the offender than complying with the infringed norms or assuming the sanction. However, the sanctions to be applied must be proportional to the non-compliance classified as an infraction, observing the following criteria indicated for the purposes of their gradation: 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 right; d) The economic harm caused; e) Recidivism, for the commission of the same infraction within the term of one (1) year from the date 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 intent in the conduct of the offender.”

Documento electrónico fi rmado digitalmente en el marco de la Ley N° 27269, Ley de Fi rmas y Certificados Digitales, su Reglamento y modificatorias.
La integridad del documento y la autoría de la( s) fi rma( s) pueden ser verificadas en https://apps.fi rmaperu.gob.pe/web/validador.xhtml

for which all supervised companies had to go through, so FONBIENES cannot claim different treatment;

That, regarding the application of the Sanction Criteria alleged by FONBIENES in its appeal, it should be noted that the same arguments were made and evaluated in the first instance, as can be seen in recitals 51 to 67 of the SANCTION RESOLUTION;

That, in accordance with subsection a) of article 25 of the SANCTION REGULATIONS, final sanctions imposed by the SMV within four (4) years prior to the commission of the infraction to be sanctioned are considered antecedents; likewise, the commission of the same infraction in the year prior to the infraction to be sanctioned is not considered an antecedent;

That, in this sense, the norm, unlike what FONBIENES states, does not establish that for a sanction to be considered an antecedent, it must be for similar facts; it is enough that it was sanctioned within four (4) years prior to the commission of the infraction. Therefore, in accordance with what was stated by the SASP, it has been verified that FONBIENES has three (3) sanction antecedents16;

That, accordingly, the arguments made by FONBIENES regarding this sanction criterion are not admissible;

That, in relation to the sanction criterion linked to recidivism, it has been verified that, although FONBIENES has not incurred recidivism in the commission of the infractions subject to sanction, in accordance with the provisions of subsection b) of article 25 of the SANCTION REGULATIONS, such circumstances have been considered in the sanction imposed as stated in recital 55 of the SANCTION RESOLUTION;

That, regarding the sanction criteria linked to the economic harm caused, its impact on the market and the illicit benefit resulting from the commission of the infractions, it must be specified that such particularities of the case have been considered by the first instance for the purposes of imposing the sanction; this is evident from Recitals 58 and 59 of the SANCTION RESOLUTION, which state that it has not been evidenced that the infractions incurred by FONBIENES have specifically affected or caused economic harm to one or more members, nor has it been evidenced that there has been an impact on the collective funds system and the market, nor has it been proven that the offender obtained an illicit benefit directly related to the infractions under analysis in this administrative proceeding;

[16] FONBIENES has the following sanction antecedents: i. Deputy Superintendence Resolution SMV No. 020-2016-SMV/10, final since 26 May 2016, by which FONBIENES is sanctioned with two (2) warnings and a fine of 3.5 UIT for having incurred three (3) infractions of a minor nature, classified in Annex XIV, numeral 3, subsection 3.1 of the OLD SANCTION REGULATIONS, for having submitted periodic information outside the period established by current regulations. ii. Deputy Superintendence Resolution SMV No. 067-2017-SMV/10, final since 5 September 2017, through which FONBIENES is sanctioned with a fine of 5 UIT for having incurred two (2) infractions of a minor nature, classified in Annex XIV, numeral 3, subsection 3.10 of the OLD SANCTION REGULATIONS, for not complying with the provisions of articles 72 and 74 of the REGULATIONS, as well as the Manual of Technical Specifications for the Remittance to the SMV of Information of Collective Fund Management Companies, in force at the time of the commission of the facts, by not timely remitting, according to the technical specifications, various information on the collective funds system. iii. Deputy Superintendence Resolution SMV No. 049-2020-SMV/10, final since 14 December 2020, by which FONBIENES is sanctioned with a fine of 7.44175 UIT for having incurred five (5) infractions of a minor nature, classified in Annex XIV, numeral 3, subsection 3.1 of the OLD SANCTION REGULATIONS and in two (2) infractions of a minor nature classified in Annex I, numeral 3, subsection 3.1 of the SANCTION REGULATIONS, for not having complied with submitting periodic information within the period established by the applicable regulations referring to interim financial information and management report.

Electronic document fi rmado digitally within the framework of Law No. 27269, Law of Fi rmas and Digital Certificates, its Regulations and amendments.
The integrity of the document and the authorship of the( s) fi rma( s) can be verified at https://apps.fi rmaperu.gob.pe/web/validador.xhtml

PERÚ Ministry of Economy and Finance
SMV
Superintendence of the Market of Securities

“Decade of Equal Opportunities for Women and Men” "Year of the Bicentennial, of the consolidation of our Independence, and of the commemoration of the heroic battles of Junín and Ayacucho"

That, according to what FONBIENES stated about the severity of the harm to the public interest and/or protected legal interest, it must be maintained that by not having complied with submitting the information in a timely manner, this affected not only adequate supervision and control of the collective fund management companies, which seeks the timely protection of the members of the collective funds system, since with such information the minimum guarantee that a collective fund management company must constitute is determined, among others, leading to the risk that it could enter into a deficit in the guarantee, an aspect that would affect the coverage of the members of the collective funds, as well as the market confidence in such funds;

That, likewise, submitting the 2020 Annual Work Plan late (more than a year late) and the Second Quarter 2020 Report (almost a month late) evidences deficiencies in the internal control system and affects the integrity of the funds market, its transparency and adequate protection of the members. Therefore, it is considered that, in accordance with the foregoing and as referred to in grounds 62 to 66 of the SANCTION RESOLUTION17, the defense arguments of FONBIENES cannot be upheld, since it has breached essential obligations of every collective funds management company, consisting of preventing the impairment of the interests of the members and the confidence of the market in said funds as protected public interests;

That, regarding what was stated by FONBIENES that there was no intentionality in its conduct; it must be indicated that, although it is true, intentionality in the misconduct of FONBIENES in the commission of the imputed infractions has not been proven; it cannot be ignored that said infractions have occurred due to a lack of due diligence in the timely submission of the information required by the regulations, referred to in this administrative sanctioning procedure;

That, in relation to the acknowledgment of responsibility supported by FONBIENES; it must be specified that, from a reading of the RESOLUTION OF

[17] “62. However, it must be indicated that the failure to comply with the deadlines established for the submission of the information subject to charges limits the supervision and control tasks of the SMV, which affects the integrity of the market, as well as the protection of the members of the collective funds system; 63. In relation to the aforementioned, it must be indicated that among the information of files not submitted is the delivery of goods and services (ENT), which allows the SMV to be informed about the delivery status of a good and/or service awarded, of all groups managed by the EAFC, for each member who has been awarded; the administrator's guarantees file (GFC) which contains information for the calculation of the minimum amount of guarantees that the EAFCs must have in custody of the SMV, the awards file (ADJ) through which the administrator reports on the awarded members - of a group - as of the date on which the members' assembly was held; the members' status file (SIT) through which the supervised entity sends the payment status of all members of a group as of the date on which the members' assembly was held and details when a member's contract has been terminated, cancelled or withdrawn; the statistical information file of the Collective Funds System (IES), through which information is provided on a series of variables of the system being managed such as active members, active contracts, delinquent contracts, terminated contracts, annulled awards, penalties, etc., among others; 64. From the foregoing, it follows how fundamental the timely submission of said information is, insofar as it allows the SMV to carry out adequate supervision and control of the collective funds administrators, thus for example, the lack of timeliness in the submission of the GFC file would not allow determining the minimum guarantee that an EAFC should constitute, so it could be incurring a deficit in the constitution of its guarantee, so said lack of coverage would directly affect the members, as well as the confidence that members, potential members and the market in general may have in the industry. Likewise, the lack of timeliness in the submission of information on contracts, awards, among others, limits the action of the Investor Ombudsman, as well as the attention that the SMV could give to the attention of complaints that members could file against the administrators; 65. On the other hand, the Internal Control Officer, as responsible for the evaluation of the internal control system of the intermediary, must seek that it provides reasonable assurance to achieve the objectives of the collective funds management company regarding the effectiveness and efficiency of its operations, reliability and sufficiency of the information generated and compliance with applicable regulations; therefore, it constitutes a first line of control whose observance contributes to the administrators being able to comply with their obligations generated as a
result of their own financing activities, which in turn contributes to the integrity of the market, its transparency and protection of the member; therefore, having submitted the 2020 Annual Work Plan more than a year late with respect to the deadline, and the Second Quarter 2020 Report almost a month late, affects the supervision and control tasks of the SMV, and therefore as mentioned, the integrity of the collective funds industry and the protection of the members; 66. It should be noted that the Annual Work Plan of the Internal Control Officer (FCI) is a document that details the actions that the FCI will execute to comply with the responsibilities assigned to it in the REGULATION, as well as the schedule of activities, which will detail the start and end date of each activity. In this sense, among the activities that must be included is evaluating the awards and delivery of goods and/or services, verifying compliance with capital, equity and indicator requirements, including the adequate calculation process, verifying compliance with the conditions of physical infrastructure and technological capacity and verifying compliance with the provisions relating to the account statement of the Members. Therefore, the analysis of the content of the activities of said plan, the monitoring of its implementation by the regulator, as well as the scope provided by the quarterly reports of the FCI, allows the SMV to adopt timely measures with the objective of protecting the associate and the integrity of the collective funds system; therefore, the lack of timeliness in the submission of said documents affects the achievement of said objectives;”

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

SANCTION, it is verified that said acknowledgment was considered by the first instance in the evaluation and determination of administrative responsibility in accordance with the grounds contained in recitals 70 to 74 of the SANCTION RESOLUTION18;

That, being so, it can be stated that the SANCTION RESOLUTION evaluated the mitigating circumstances provided in literals a), b) and c) of article 26 of the SANCTIONS REGULATION, referring to: (i) Acknowledgment of administrative responsibility, (ii) The offender's contribution to its clarification; and, (iii) The correction made after its requirement; respectively. As a consequence, in the present case a reduction was applied to the fine sanction that would have corresponded to FONBIENES for the commission of the thirty-four (34) administrative infractions;

That, in that line of reasoning, FONBIENES's claim related to a greater reduction of the sanction in this instance due to the application of the mitigating circumstance referring to the acknowledgment of administrative responsibility must be dismissed; since that part of its arguments were included in the evaluation and graduation of the sanction imposed in the first instance; and, the evaluation of this criterion could not lead to a greater reduction of the sanction imposed, considering that FONBIENES incurred in the commission of thirty-four (34) infractions, which as mentioned above, could be subject to sanction, in accordance with the provisions of article 39 of the SANCTIONS REGULATION, with a fine of no less than one (1) and up to twenty-five (25) Tax Units (UIT) each and by application of the mitigating circumstances the first instance imposed a fine of ten (10) UIT;

That, in relation to what was stated by FONBIENES in its ARGUMENTS regarding that: (i) It reiterates the application of the mitigating circumstance of responsibility referring to the acknowledgment of responsibility regarding the imputed infractions, (ii) It requests the reduction by 50% of the sanction imposed, (iii) It states that no harm caused to its associates or the general public has been proven, nor its impact on the market; it is appropriate to specify that said arguments are repetitive; notwithstanding this, they have been previously evaluated and developed in the preceding paragraphs;

That, regarding what was stated by FONBIENES, in its ARGUMENTS, regarding that in Report No. 213-2024-SMV/10.3, the General Superintendence of Prudential Compliance concludes in reducing the sanction from ten (10) UIT to five (5) UIT for the commission of the thirty-four (34) imputed infractions; it corresponds

[18] “70. Regarding the mitigating circumstances of responsibility, in what refers to the acknowledgment of the infraction, it must be indicated that Fonbienes EAFC, in accordance with what was stated in the discharges, has expressly stated its acceptance and application of the provisions of article 26, literal a) of the Sanctions Regulation, in that sense it has acknowledged its responsibility in the infractions incurred expressly and in writing, within the term granted for the presentation of discharges, and in a precise, concise, clear, express and unconditional manner, without ambiguous or contradictory expressions; 71. Additionally, it must be noted that Fonbienes EAFC has contributed to the clarification of the infractions; 72. On the other hand, the mitigating condition referring to the correction made after its requirement, established in article 26, subsection c) of the Sanctions Regulation, has also been configured, given that through Official Letter No. 3290-2020-SMV/10.2 of 24 September 2020 and Official Letter No. 259-2021-SMV/10.2 of 20 January 2021, the SMV required Fonbienes EAFC to submit the information indicated in the preceding recitals, which was complied with by Fonbienes EAFC upon the request made; 73. In that context, in accordance with the provisions of article 39 of the Sanctions Regulation, the commission of an infraction of a minor nature is subject to a sanction corresponding to a warning or fine of no less than one (1) nor more than twenty-five (25) Tax Units (UIT); 74. In this regard, taking into account the sanction criteria analyzed in application of the Principle of Reasonableness contemplated in article 248, numeral 3 of the TUO of the LPAG, which states that sanctions must be proportional to the non-compliances qualified as infractions and, considering that it has not been evidenced that the infractions committed by Fonbienes EAFC have caused harm to the public interest, economic harm to the associates, that they have had an impact on the collective funds system and on the market, or that it has obtained any illicit benefit from the commission of the imputed infractions, that the probability of detection of the infractions was high and that no intentionality was evidenced in its conduct and that Fonbienes EAFC has acknowledged its responsibility regarding the infractions it has incurred, it is appropriate that the fine to be imposed for the infractions must range between 0.5 UIT and 12.5 UIT; that is, 50% of the range established for minor infractions, in accordance with the provisions of article 26, literal a), subsection 1) of the Sanctions Regulation;"

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

specify that in accordance with the provisions of literal d) of article 16 of the SANCTIONS REGULATION19, the referred instructing body, in the present case, presented a report which contains, in a reasoned manner, the conducts considered proven constituting an infraction, with a proposed sanction, which is not binding; therefore the SASP, subject to the provisions of literal e) of article 17 of the SANCTIONS REGULATION20, issued the SANCTION RESOLUTION, ruling on the commission of the infractions and the application of the sanction of ten (10) UIT;

That, likewise, it is relevant to point out that it is the duty of FONBIENES, as a collective funds administering company, to be diligent in the evaluation of its internal processes and to carry out the actions that are necessary so that this does not generate non-compliances with the regulations applicable to it; and,

In accordance with the provisions of numeral 26 of article 12 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 unfounded the appeal filed by Fonbienes Perú EAFC S.A. against the Resolution of Deputy Superintendence SMV No. 009-2024-SMV/10.

Article 2.- Consider the administrative route exhausted.

Article 3.- Transcribe this resolution to Fonbienes Perú EAFC S.A.

Article 4.- Order the dissemination of this resolution on the Institutional Page of the Superintendence of the Securities Market on the Single Digital Platform of the Peruvian State (www.gob.pe/smv).

Zósimo Juan Pichihua Serna
Superintendent of the Securities Market

[19] "Article 16.- INSTRUCTING PHASE (...) d) The instructing phase concludes with the formulation of a report of the General Intendancies of Compliance, in which the conducts considered proven constituting an infraction are determined in a reasoned manner, the norm that provides for the imposition of sanction and the proposed sanction or the proposal of declaration of non-existence of infraction, mentioning that the pronouncement is made on the basis of the elements existing at that date, as appropriate."

[20] "Article 17.- SANCTIONING PHASE (...) e) The final resolution must rule on the commission of the infraction, the application of a sanction or the decision to archive the procedure. Likewise, it may impose precautionary, provisional or corrective measures. The Deputy Superintendent may order the execution of the guarantees granted by the legal persons under the competence of the SMV."

PERU Ministry of Economy and Finance
SMV
Superintendence of the Market of Securities

"Decade of Equal Opportunities for Women and Men" "Year of the Bicentennial, of the consolidation of our Independence, and of the commemoration of the heroic battles of Junín and Ayacucho"

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

Resolution No. 119-2024-SMV/02 of the Superintendent of the Securities Market