Resolution of the Assistant Superintendent of Prudential Supervision No. 042-2025-SMV/10 — SMV — PE

PERU Ministry of Economy and Finance

SMV
Securities Market
Superintendence
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 authorship.

Assistant Superintendent of Prudential Supervision Resolution No. 042-2025-SMV/10 Lima, July 31, 2025

Summary: The reconsideration appeal filed by El Dorado Asset Management Fund Administrator Society S.A. against the Assistant Superintendent of the Securities Market Superintendence Resolution No. 029-2025-SMV/10 is declared unfounded.

Regulated Entity: El Dorado Asset Management Fund Administrator Society S.A.
Subject: Reconsideration appeal against Assistant Superintendent of the Securities Market Superintendence Resolution No. 029-2025-SMV/10 File No.: 2025005011

The Assistant Superintendent of Prudential Supervision

SEEN:
Administrative file No. 2025005011, the challenging appeal presented by El Dorado Asset Management Fund Administrator Society S.A., and Report No. 843-2025-SMV/10.3, issued by the General Intendancy of Prudential Compliance; and

CONSIDERING:

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

I. BACKGROUND
2. By Assistant Superintendent of the Securities Market Superintendence Resolution No. 029-2025-SMV/10 notified on May 16, 2025 (hereinafter, RESOLUTION), it was decided to sanction El Dorado Asset Management Fund Administrator Society S.A. (hereinafter, EL DORADO SAF) with two (2) warnings and one (1) fine of 1.53 UIT, equivalent to S/ 6,732.00, for having committed three (3) minor infractions typified in Annex I, numeral 3, subsection 3.1 of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01 (hereinafter, SANCTIONS REGULATION), for failing to present occasional information within the deadline established in the applicable regulations;
3. On June 6, 2025, EL DORADO SAF filed a challenging appeal against the RESOLUTION;
4. By Assistant Superintendent of the Securities Market Superintendence Resolution No. 033-2025-SMV/10, notified on June 10, 2025, the challenging appeal presented by EL DORADO SAF was redirected as a reconsideration appeal, and the present administrative sanctioning procedure was qualified within those provided for in numeral 2 of Article 1 of SMV Resolution No. 013-2024-SMV/01;

II. ON THE ADMISSIBILITY OF THE RECONSIDERATION APPEAL
5. According to what is established in Article 32, numeral 27 of the Regulation of Organization of Functions of the SMV, approved by Supreme Decree No. 216-2011-EF, it is the function of the Assistant Superintendent of Prudential Supervision to resolve reconsideration appeals against the resolutions it issues;
6. Likewise, Article 218, numeral 218.2 of the Single Text of the General Administrative Procedure Law, Law No. 27444, approved by Supreme Decree No. 004-2019-JUS (hereinafter, TUO LPAG), establishes that the term for filing appeals is fifteen (15) peremptory days. According to what is stated in Article 144 of the TUO LPAG, the aforementioned period will begin to run from the day following the legal notification of the impugnable administrative act;
7. Regarding this, it has been verified that the impugned resolution was notified to EL DORADO SAF on May 16, 2025, and the reconsideration appeal was filed within the fifteen (15) days established by Article 218 of the TUO LPAG;
8. In accordance with Article 219 of the TUO LPAG, the reconsideration appeal is filed before the same body that issued the act subject to challenge and must be supported by new evidence. However, in the case of administrative acts issued by bodies that constitute a single instance, new evidence is not required;

III. ARGUMENTS EXPRESSED BY EL DORADO SAF
9. EL DORADO SAF presents its arguments so that the monetary sanction imposed by the RESOLUTION is modified into an admonition sanction, specifically regarding the infraction referred to as not having timely communicated the important event of March 31, 2021, concerning the agreement to appoint Mr. Paul Henry Smith as a member of the Board of Directors and Mrs. Mery Rocío Infantas Duran as President of the Board of Directors (hereinafter, THE INFRACTION);
10. Regarding this, EL DORADO SAF considers that the RESOLUTION does not clearly justify the imposition of a monetary fine and does not adequately apply the sanction criteria to impose an admonition sanction, thus requesting that the latter be imposed instead of the fine imposed;
11. EL DORADO SAF alleges that it is aware of the impact on transparency produced by the commission of THE INFRACTION; however, it mentions that according to what is provided in SMV Resolution No. 007-2023-SMV/01, transparency is linked to the criterion of the gravity of damage to the public interest and/or protected legal good;
12. Likewise, EL DORADO SAF considers that the interpretation made by the SMV regarding the impact on transparency as a protected legal good is based on a quantitative analysis related to the days elapsed; however, the administrator society considers that under a qualitative analysis and taking into account the aspect of the gravity of damage and public interest, THE INFRACTION originated within the context of the regulatory conditioning process and did not imply a negative variation in profitability or on any right of any investor, or on the market;
13. Similarly, EL DORADO SAF mentions that THE INFRACTION has not generated an impact or possible damage, since the modification in the composition of the Board of Directors of the administrator society did not imply a particular substantial decision or agreement, considering that one of the members was already a director prior to this, while the second joined as an independent director. Additionally, EL DORADO SAF alleges that THE INFRACTION occurred in a fortuitous context such as the Covid-19 pandemic, where the state imposed restrictive measures;
14. On the other hand, EL DORADO SAF argues that THE INFRACTION has not caused concrete harm to investors, since Mrs. Mery Rocío Infantas Duran, before her appointment as President of the Board, was already a member thereof and this was known to the market and investors; whereas, from the date of appointment of Paul Smith as independent director until the date of communication, he only participated in one Board session, where no plausible agreement affecting investors was adopted;
15. Likewise, EL DORADO SAF alleges that it only has two (2) antecedents, and that there has been no recurrence of any similar offense. Similarly, EL DORADO SAF mentions that it has not obtained economic benefit from the commission of THE INFRACTION;
16. Similarly, EL DORADO SAF refers that the situations regarding the appointment of directors were part of the regulatory conditioning of said administrator society to securities market regulations, as it was required that the position of General Manager and President of the Board could not fall on the same person;
17. Finally, regarding intent in the commission of the infraction, EL DORADO SAF indicates that having incurred in THE INFRACTION does not mean possible damage beyond regulatory compliance, and that at the time of the commission of THE INFRACTION, some internal controls failed, being an administrator society of recent constitution;

IV. EVALUATION OF THE ARGUMENTS EXPRESSED BY EL DORADO SAF

In its reconsideration writing, EL DORADO SAF refers that, in accordance with what is established in the Gradual Regime of Sanctions for Late Submission of Financial Information, Annual Report, and Important Events, approved by SMV Resolution No. 007-2023-SMV/01 (hereinafter, GRADUAL REGIME OF SANCTIONS), the impact on transparency in the market is linked to the criterion of the gravity of damage to the public interest and/or protected legal good, as established in subsection a. of numeral 6.1 of said normative body;
According to said regulation, EL DORADO SAF states that the impact on the principle of transparency and the analysis of the criterion of the gravity of damage to the public interest and/or protected legal good is based on a quantitative criterion related to the days elapsed when it should be under a qualitative analysis;
EL DORADO SAF points out that THE INFRACTION committed originated within the context of the regulatory conditioning process, that it did not imply a negative variation in profitability, or on any investor's right, and that the appointment of its directors did not imply a harmful impact on the market, thus requesting that the monetary sanction imposed by the RESOLUTION be modified into an admonition sanction;
Regarding this, we must point out that EL DORADO SAF, by citing the provisions of the GRADUAL REGIME OF SANCTIONS, considers that such legal device should be applied to THE INFRACTION, which constitutes the application of the principle of non-retroactivity contained in numeral 5 of Article 248 of the TUO LPAG to THE INFRACTION;
On the application of the principle of non-retroactivity, contained in numeral 5 of Article 248 of the TUO LPAG, it must be indicated that, in principle and as stated in numeral 5 itself, the sanctioning provisions in force at the time the regulated entity incurred in the conduct to be sanctioned are applicable to the facts subject to infraction;
In the present case, as a first step, it was analyzed whether THE INFRACTION should be imposed an admonition sanction in accordance with the norms that were in force at the date the facts occurred, that is, the "Criteria Applicable to the Administrative Sanctioning Procedure for Non-Compliance with Norms Regulating the Submission of Periodic or Occasional Information", approved by SMV Resolution No. 006-2012-SMV/01 and its amendment (hereinafter, SANCTION CRITERIA), concluding that applying an admonition sanction was not appropriate;

2 "Article 218. Administrative Appeals
218.1 The administrative appeals are:
a) Reconsideration appeal b) Appeal
Only in the case that law or legislative decree expressly establishes, the administrative appeal of review may be filed.
218.2 The term for filing the appeals is fifteen (15) peremptory days, and they must be resolved within thirty (30) days."

PERU Ministry of Economy and Finance

It should be noted that in the analysis of the RESOLUTION it was also evaluated if, in application of the GRADUAL REGIME OF SANCTIONS, it corresponded or not to apply an admonition sanction to THE INFRACTION, determining that it did not (with which such regime was not more beneficial to them) in accordance with considerations fifty-two to fifty-six of the RESOLUTION;
Likewise, it must be indicated that for the analysis of the impact on the principle of transparency, factors that have an impact on it must be considered; thus, in addition to the time of delay in the submission of information (minutes of delay versus days of delay), the type of information involved must be evaluated (whether it is an important event or financial information), whether it refers to the funds it administers or to the society itself (as in the present case), to whom it is directed or from whom such information is deprived (participants, institutional, general public, real and potential investors, etc.), objective of having it timely (decision making or carrying out a specific evaluation), among others, which was analyzed in the RESOLUTION: considerations two, three (a), twenty-one, thirty-one, and thirty-two;
Similarly, it must be pointed out that important events referred to an administrator society can affect the investment decisions of potential and real investors regarding the funds they administer; thus, for example, in the case of the entry of an independent director and the designation of the President of the Board of the administrator, the market can evaluate corporate governance practices and their relationship with the management of administered funds; therefore, late communication of these events could imply depriving real and potential investors of knowing such changes timely, since it is not possible to determine if such investors have been affected by not being able to invest or divest in the administered funds timely as a consequence of the evaluation of said important event. For this reason, the communication of occasional information has a presentation deadline, and untimely presentation produces misinformation in the market;
With respect to what is stated, it must be indicated that EL DORADO SAF is a regulated and supervised entity operating in a specialized and complex market, whose authorization to operate was granted by Superintendent Resolution No. 113-2017-SMV/02 of November 27, 2017, that is, more than three years prior to the commission of the infraction of communicating the appointment of its directors, thus it is not acceptable to disclaim responsibility by claiming that when the infraction was committed, it was an administrator society of recent constitution, when, as noted, it had already had operational authorization since 2017, without prejudice to the fact that every entity regulated and authorized by the SMV must know and comply with the regulatory framework applicable to it from the date it obtains its operational authorization;
Likewise, it must be pointed out that the possibility of the investor investing with more confidence and information is linked to mitigating risks related to situations of asymmetric information, thus the timely communication of important events contributes to this sense. The information disseminated to the market through important events has potential repercussions not only on topics of variation in profitability or on any right, as EL DORADO SAF intends to relativize, but additionally cover various aspects that can influence the decision-making process by a sensible investor;
In concordance with this, THE INFRACTION committed by EL DORADO SAF did not produce a minimal impact on market transparency, since the communication of the important event analyzed was carried out with a delay of two hundred eight (208) days after the presentation deadline, thus evidencing that such delay had a significant impact on market transparency, with no minimal impact on said protected legal good;
In that sense, considering that THE INFRACTION committed by EL DORADO SAF presents a substantial impact on market transparency, as a protected legal good, both quantitatively and qualitatively, it is not possible to impose an admonition sanction; since, in accordance with subsection a. of numeral 6.1 of the GRADUAL REGIME OF SANCTIONS, such sanction may be imposed when the impact on transparency in the market is minimal;
As a consequence thereof, since the consideration established in subsection a. of said numeral 6.1 of the GRADUAL REGIME OF SANCTIONS has not been met, it is not reasonable to perform the evaluation of the other considerations required to apply an admonition sanction, since numeral 6.1 requires the concurrence of all the circumstances established therein;
Without prejudice to the above, it is necessary to indicate that the SANCTION CRITERIA constitute objective criteria that allow determining the sanction to be imposed for the commission of THE INFRACTION. However, said objective criteria require that parallel to their application, parameters and guidelines comprised in sections 3, and 4.2 of said normative body be evaluated; thus, the calculation of the sanction to be imposed for infractions referred to lack of timeliness in the communication of important events, already considers other particular circumstances such as those raised by EL DORADO SAF in its reconsideration writing;
In that sense, regarding the objective calculation of the sanction, in accordance with what is provided in numeral 4.2 of the SANCTION CRITERIA, the RESOLUTION evaluated the criteria, parameters, and guidelines established in said normative body for the determination of the imposed sanction;
On the other hand, regarding THE INFRACTION not having caused concrete harm to investors, it must be indicated that this has been previously valued in the RESOLUTION: considerations thirty-three and fifty-three;
Similarly, regarding the argument related to EL DORADO SAF not obtaining a benefit from its infringing conduct, the RESOLUTION, through said consideration fifty-three, has determined that there is no evidence that EL DORADO SAF has obtained a benefit from its illegal conduct, thus, said criterion was already valued to determine the sanction imposed in the RESOLUTION;
It should be noted that if as a result of the evaluation of the charge subject to challenge, it had been determined that there existed, among others, concrete harm to investors, obtaining an illegal benefit, or intent in the commission of the infraction by EL DORADO SAF, the fine would not have been 1.53 UIT but rather a fine of up to 12.5 UIT could have been applied in accordance with what is established by numeral 4.2, subsection (vi) of the SANCTION CRITERIA and considering the recognition made by the administrator;

PERU Ministry of Economy and Finance

Likewise, regarding the arguments related to the background and recurrence of infractions of EL DORADO SAF, it must be indicated that this has been valued in the thirty-fourth, thirty-fifth, and thirty-sixth considerations of the RESOLUTION. It must be specified that the background relates to serious infractions for non-compliance with regulations linked to anti-money laundering and counter-terrorism financing rules; that is, the administrator for the position subject to the challenge has no such background; otherwise, the calculation of the initially determined fine would not have increased by 2%, but by 3%; as established by numeral 4.2, literal (v) of the SANCTION CRITERIA;
With respect to the argument of EL DORADO SAF referring to the fact that at the time of the commission of the infraction there were failures in internal controls due to being an administrator society of recent constitution, it must be mentioned that EL DORADO SAF has the obligation to carry out its activities with diligence, and in this manner, adopt the necessary measures or actions that allow it to comply with the requirements demanded by the regulations, in order to avoid incurring infractions; moreover, since EL DORADO SAF is a company supervised by the SMV, which knows the norms regulating the securities market, and the specific regulation of submission of eventual information such as important events;
For the foregoing, it is concluded that the arguments pointed out by EL DORADO SAF in its reconsideration appeal have not disproven the foundations supporting the RESOLUTION, which served as the basis for the imposition of the sanction of a fine of 1.53 UIT applied to said company, for failing to comply with what is provided in literal a) of article 131 of the Regulations for Mutual Investment Funds in Securities and their Administrator Societies, approved by CONASEV Resolution No. 0068-2010-EF/94.01, incurring in one (01) infraction of a minor nature typified in Annex I, numeral 3, clause 3.1 of the SANCTIONS REGULATION, for not having timely communicated the important event referred to the agreement to appoint Mr. Paul Henry Smith as a member of the board and Mrs. Mery Rocío Infantas Duran as president of the board; occurred on March 31, 2021;

Being in accordance with what is provided in article 32, numeral 27, of the Organization and Functions Regulation of the SMV, approved by Supreme Decree Nº 216-2011-EF;

RESOLVES:

Article 1º.- Declare unfounded the reconsideration appeal presented by El Dorado Asset Management Sociedad Administradora de Fondos S.A. for the reasons exposed in this resolution.

Article 2º.- Declare that the administrative avenue has been exhausted by the Resolution of Adjunct Superintendent SMV No. 029-2025-SMV/10 becoming firm.

Article 3º.- This resolution shall be published on the Institutional Page of the SMV in the Unique Digital Platform of the Peruvian State, in observance of what is provided by numeral 1, article 7º of the Policy on diffusion of normative projects, general character legal norms, early agenda and other administrative acts of the SMV, approved by SMV Resolution Nº 014-2014-SMV/01

PERU Ministry of Economy and Finance

SMV
Securities Market Superintendency
Electronically signed document within the framework of Law No. 27269, Law of Digital Signatures and Certificates, its regulations and amendments. The integrity of the document and authorship and its amendment, and for what is provided in article 14° of the Sanctions Regulation, approved by SMV Resolution N° 035-2018-SMV/01.

Article 4º.- Transcribe this resolution to El Dorado Asset Management Sociedad Administradora de Fondos S.A.
Register, communicate and publish.
Omar Gutiérrez Ochoa
Adjunct Superintendent
Adjunct Superintendent of Prudential Supervision

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