Resolution SBS No. 2304-2020: Approves the Special Regime for Market Conduct Management of the Financial System

Lima, September 22, 2020
Resolution S.B.S.
No. 2304-2020

The Superintendent of Banks, Insurance, and Private Pension Fund Administrators

CONSIDERING:

That, through the Market Conduct Management Regulation of the Financial System, approved by SBS Resolution No. 3274-2017 and its modifying norms, it is established that companies must have adequate market conduct reflected in the practices they adopt in their relationship with users, in the offer of financial products and services, the transparency of information, and the management of complaints, in accordance with what is provided by the Supplementary Law to the Consumer Protection Law in Financial Services, Law No. 28587 and the Consumer Protection and Defense Code, Law No. 29571, among other aspects;

That, the aforementioned Regulation establishes provisions for supervised companies that are not included within the scope of the definition of user and/or client, as established in the Third Complementary Final Provision of this Regulation;

That, the Fifth Complementary Final Provision of the Market Conduct Management Regulation of the Financial System, approved by SBS Resolution No. 3274-2017, establishes that the Superintendence, through a general norm, may consider that certain products are subject to a simplified regime for the Management of Market Conduct of the Financial System regarding compliance with the requirements considered in the Regulation;

That, through Title III of the Electronic Money Operations Regulation approved by SBS Resolution No. 6283-2013 and its modifying norms, the Simplified Transparency Regime for electronic money operations was developed, regulating aspects applicable in matters of information transparency, contracting, and user service for electronic money issuing companies, in accordance with the Fifth Complementary Final Provision of the Market Conduct Management Regulation of the Financial System;

That, by virtue of this, it has been deemed convenient to provide that, based on their nature, size, complexity and/or volume of operations, as well as the financial products and/or services offered and their target audience, certain companies included in paragraph B of article 16, as well as the companies of article 17 of the General Law of the Financial System and the Insurance System and Organic Law of the Superintendence of Banks and Securities, Law 26702 and its modifying norms (General Law), including electronic money issuers as mentioned in the previous consideration, shall be governed by a special regime for the Management of Market Conduct of the Financial System, which comprises a simplified treatment according to the segments to which the companies belong;

That, for the purpose of collecting opinions from the general public, the draft resolution was published on the Superintendence's electronic portal, under the provisions of Supreme Decree No. 001-2009-JUS;

Having the approval of the Adjunct Superintendencies of Banking and Microfinance, Risks, Market Conduct and Financial Inclusion, and Legal Advice; and,

In exercise of the powers conferred by paragraphs 7, 9, and 13 of article 349 of the General Law of the Financial System and the Insurance System and Organic Law of the Superintendence of Banks and Securities – Law No. 26702 and its modifying norms;

RESOLVES:

Article First.- Approve the Regulation of the Special Regime for the Management of Market Conduct of the Financial System, as indicated below:

REGULATION OF THE SPECIAL REGIME FOR THE MANAGEMENT OF MARKET CONDUCT OF THE FINANCIAL SYSTEM

TITLE I
GENERAL ASPECTS

Article 1. Scope
The provisions of this Regulation are applicable to the companies included in paragraph B of article 16, as well as to the companies of article 17 of the General Law.

Article 2. Definitions
For the purposes of what is provided in this Regulation, the following definitions and references must be considered:

1. Circular: User Attention Circular, approved by Circular G-184-2015 and its modifying norms.

2. Client: User with whom the company contracts the provision of some service or supply of a financial product.

3. Market Conduct: practices of companies in their relationship with users, regarding the offer of financial products and services, the transparency of information, and the management of complaints.

4. Days: calendar days.

5. Electronic money: product defined in accordance with what is established in article 1 of the Regulation of Law No. 29985 that Regulates the Basic Characteristics of Electronic Money, Supreme Decree No. 090-2013-EF.

6. Companies: those considered within the scope of article 1.

7. Contractual form: contract model that is disseminated to the public, which includes the annexes that establish specific stipulations proper to the product and/or financial services that are the subject of agreement.

8. General Law: General Law of the Financial System and the Insurance System and Organic Law of the Superintendence of Banks and Securities, Law No. 26702 and its modifying norms.

9. Service order: physical or electronic document that certifies the contracting of a service provided by the company, usually of short duration, and which contains the identification data of the client, as well as the details and conditions of the operation.

10. Financial product and/or service: product and/or service of a financial nature that can be an asset, liability, or accessory or auxiliary service to the financial service.

11. Regulation: Regulation of the Special Regime for the Management of Market Conduct of the Financial System.

12. Market Conduct Management Regulation: Market Conduct Management Regulation of the Financial System, approved by SBS Resolution No. 3274-2017 and its modifying norms.

13. Superintendence: Superintendence of Banks, Insurance, and Private Pension Fund Administrators.

14. User or consumer: person who acquires, uses, or enjoys the products or services offered by the company, or who potentially could use them, and who is defined as such, in accordance with what is provided by the Consumer Protection and Defense Code, approved by Law No. 29571 and other norms on consumer protection and market conduct.

Article 3. Proportionality of market conduct management
3.1 The market conduct management of companies must be proportional to their nature, size, complexity and/or volume of operations, as well as to the financial products and/or services offered and their target audience. In this sense, three segments of companies are established to which general and special regulatory requirements will apply:

Segment A: Financial Leasing Companies, Factoring Companies, Mortgage Administrator Companies Segment B: Electronic Money Issuing Companies Segment C: Fiduciary Service Companies, Surety and Guarantee Companies, Funds Transfer Companies, General Warehouse Deposit, Transportation Companies, Cash Custody and Administration

3.2 When the provisions issued in the Regulation do not refer to a particular segment, it must be understood that they apply to all segments of companies contemplated in this article.

3.3 For companies that only have clients who are not considered users, regardless of the segment to which they belong, only the following provisions will apply:

a) Regarding the principles and management of market conduct, articles 3, 4, and 6 of the Market Conduct Management Regulation apply, with the exception of paragraphs 3, 4, and 5 of article 4.

b) Regarding the Market Conduct Officer, what is established in paragraph 1 of paragraph 5.3 of article 5 of this Regulation does not apply. Likewise, with regard to the responsibilities and functions regulated in paragraph 5.4 of article 5 of this Regulation, paragraphs 4, 5, 6, 7, 8, and 9 of paragraph 9.1 and paragraph 9.2 of article 9 of the Market Conduct Management Regulation are not applicable.

c) Chapter I of Title VI of this Regulation, regarding complaint handling.

Regarding Segment A companies, in addition to the above, articles 22 and 25 of the Market Conduct Management Regulation apply to them, referring to information prior to contracting and information on active products.

TITLE II
MARKET CONDUCT MANAGEMENT

CHAPTER I
ASPECTS RELATED TO MARKET CONDUCT MANAGEMENT AND MARKET CONDUCT OFFICER

Article 4. Principles and Management of Market Conduct
Companies must comply with what is established in Chapters I and II of Title II of the Market Conduct Management Regulation.

Article 5. Market Conduct Officer
5.1 Companies must have a part-time market conduct officer, who must not share functions with areas that could generate a conflict of interest.

5.2. The communication of the appointment of the officer must be forwarded to the Superintendence within five (5) days counted from the date of his designation by the Board of Directors.

5.3 The market conduct officer must meet the following minimum requirements:

1. Have knowledge in matters of consumer protection and market conduct.
2. Have knowledge about the financial products and/or services provided by the company.

5.4 The responsibilities and functions of the Market Conduct Officer are governed in accordance with what is provided by article 9 of Chapter III of Title II of the Market Conduct Management Regulation.

5.5 The market conduct officer must prepare an annual report on the market conduct management in the company and the results obtained, and present it to the Superintendence within forty-five (45) days following the closing of the fiscal year.

5.6. Companies must maintain the support that evidences the compliance with the functions and responsibilities of the market conduct officer, which must be available to the Superintendence.

TITLE III
TRANSPARENCY

CHAPTER I
INTEREST RATES, FEES, AND EXPENSES

Article 6. Criteria applicable to interest rates, fees, and expenses
6.1 Segment A companies that carry out operations with users must apply the provisions of Chapters I and II of Title III of the Market Conduct Management Regulation.

6.2 Regarding companies belonging to segments B and C, fee or expense must be understood as the remuneration for the provision of an effective service, previously agreed upon with the client and which has technical justification. Fees and expenses are subject to the following:

1. Fees are remuneration for services provided by companies, and expenses are remuneration for services in which companies incur with third parties on behalf of the client.

2. Fees and expenses must imply the provision of a previously agreed service, as well as a real and demonstrable cost. Companies must have the support of fees and expenses that allows crediting the effective existence of the services that justify the transfer of said concepts to the client. The aforementioned support must be available to the Superintendence, through the mechanism it establishes.

CHAPTER II
INFORMATION TRANSPARENCY

Article 7. Mechanisms for information dissemination
7.1 Companies must disseminate, through channels made available to the public, information regarding the characteristics of the offered products and services, as well as rates, fees, expenses, and taxes.

7.2 Companies must prepare a list or tariff containing information on rates, fees, and expenses for each financial product or service offered, referencing the timing of its charge, update date, and other conditions that affect its application.

7.3 Additionally, the company must include on its website:

1. Information on the characteristics and relevant aspects related to the benefits, risks, and conditions of the financial product and/or service, as well as the dissemination of contractual conditions and others considered relevant by the company.

2. Segment B companies must additionally include the following information: (i) the conditions for the use, conservation, and security of the support delivered by the issuer for the use of electronic money, such as cards or others, if applicable; and (ii) the procedure applicable to block the electronic money account.

3. Segment A companies, when carrying out operations with users, must additionally disseminate the information detailed in Annex No. 4 of the Market Conduct Management Regulation, as well as establish a link that will be included permanently in the "Citizen Orientation and Services Portal" section of the Superintendence's website.

TITLE IV
CONTRACTING WITH USERS

CHAPTER I
INFORMATION FOR CONTRACTING, MODIFICATION, AND CONTRACTUAL RESOLUTION

Article 8. Information prior to contracting and contractual modification
8.1 Segment A companies that carry out operations with users are governed by the provisions of Chapter I of Title IV of the Market Conduct Management Regulation, referring to information for the contracting of financial products and services, and what is stated in Chapter II of Title IV of the Market Conduct Management Regulation.

8.2 Companies of segments B and C must comply with the provisions established in articles 22, 23, and 24 of Chapter I of Title IV of the Market Conduct Management Regulation, referring to information prior to contracting.

8.3 For companies of segments B and C, unilateral modifications regarding: i) fees, ii) expenses; and, iii) other contractual stipulations only proceed insofar as they have been previously agreed upon and communicated, through the direct medium agreed upon with the client with a non-minimum advance of forty-five (45) calendar days, indicating the date or moment from which the modification will enter into force. A record must be kept regarding the communications made. This requirement is not applicable when it comes to contractual modifications that imply more favorable conditions for clients and/or constitute additional facilities to those existing and that do not imply the loss or substitution of previously established conditions.

8.4 For companies of all segments, contractual modifications associated with the incorporation of services that are not directly related to the contracted financial product or service and, therefore, do not constitute a condition for contracting, proceed always that prior communication is made with a non-minimum advance of forty-five (45) days, through the direct medium agreed upon with the client, granting the faculty to accept the proposed modification, without the client's refusal implying a resolution of the main contract.

Article 9. Modification, contractual resolution, and application of prudential norms
Companies must comply with the provisions of articles 39, 40, and 41 of Chapter II of Title IV of the Market Conduct Management Regulation, referring to contractual resolution at the user's request, unilateral contractual resolution, and resolution or contractual modification by application of prudential norms, respectively.

TITLE V
CONTRACTUAL CONDITIONS

CHAPTER I
GENERAL ASPECTS

Article 10. Elaboration of contractual conditions and multiproduct contracts
Companies are governed by the provisions of articles 47 and 48 of Chapter I of Title V of the Market Conduct Management Regulation.

Article 11. Contracting of financial products and/or services
11.1 In contracting, the following must be considered:

1. Companies must verify the identity of the contractor and leave a record of the acceptance of the conditions stated in the contract.

2. To carry out the verification indicated in paragraph 1, companies must use some factor of authentication or a combination of them to carry out what is provided in paragraph 1, in accordance with what is established in current regulations.

3. Factors of authentication such as: physical or virtual devices, handwritten signature, fingerprint, identification key, signature or digital certificate, biometric means, among others provided in current regulations, may be used.

4. Those conditions that are not expressly established in the contract, or those that have not been previously informed, are not enforceable. Companies must keep a record of the evidence of the celebration of the contract and of its delivery or making available.

11.2 Companies may determine that the contract, including other documents that summarize the contractual conditions, as well as any other information that corresponds, be delivered and/or made available to the client, through one of the following means:

1. In the public service offices of the companies.

2. At the address established by the client.

3. The sending or making available of the contract by electronic means, provided that its reading, printing, conservation, and reproduction without changes are allowed.

11.3 The means used by the company for the delivery and/or making available of the contract, in accordance with what is provided in the preceding paragraph, must be informed to the contractor. If the contracting is celebrated in the public service offices with the intervention of a company official, the client may request that the contract be delivered immediately.

11.4 The delivery and/or making available of the contract including the summary sheet or information booklet, as well as any other information that corresponds, must be carried out within a maximum period of fifteen (15) days from the celebration. In case the contract is celebrated in writing and the delivery of the contract in the public service offices is provided, this is carried out immediately.

11.5 Companies must prove the delivery to the client, by any means, of the number of the resolution of the Superintendence by which the general clauses corresponding to the celebrated contract were approved.

11.6 Companies that operate through service orders must comply with the provisions stated in paragraph 11.1 of this article; and must deliver and/or make them available to the client, at minimum, in the same channel of service and registration of the operation.

Article 12. Dissemination of contractual forms and abusive clauses
Mortgage administrator companies and electronic money issuing companies must apply what is provided in Chapters II and III of Title V of the Market Conduct Management Regulation.

CHAPTER II
ADDITIONAL ASPECTS APPLICABLE TO
ELECTRONIC MONEY ISSUING COMPANIES

Article 13. Aspects applicable in matters of contracting
13.1 The electronic money contract must contain, at minimum, the following information:

1. The characteristics and conditions to carry out operations with electronic money, the limits associated with the operations, as well as the restrictions applicable to the electronic money account.

2. The reconversion conditions.

3. The conditions for the use, conservation, and security of the support delivered by the issuer for the use of electronic money, such as cards or others, if applicable.

4. The channels made available to them for the carrying out of operations with electronic money, indicating the requirements for their use.

5. The possibility that the client requests the temporary or definitive blocking of their electronic money account due to, among others, loss, theft, robbery, larceny, or unauthorized use of the support delivered by the issuer for the use of electronic money or of the information it contains.

6. Procedure applicable for the resolution of the contract.

7. The assumptions of responsibility of the parties considering what is provided in article 18 of this Regulation.

13.2 Electronic money issuers may celebrate contracts through presencial or non-presencial channels, as established in article 8 of the Electronic Money Operations Regulation, approved by SBS Resolution No. 6283-2013, considering the provisions contemplated in the general regime.

TITLE VI
PROVISIONS FOR ELECTRONIC MONEY ISSUING COMPANIES 1

1 Title modified by article two of SBS Resolution No. 4036-2022.

CHAPTER I
GENERAL ASPECTS
Article 14. Person Responsible for Handling Complaints
Companies may assign the tasks of the complaint handling area described in paragraph 6.1 of the Circular to another area or official of the company, which must have adequate resources to fulfill the purposes of the complaint and requirement handling system, in accordance with the current regulatory framework, considering an area or official with whom conflicts of interest cannot arise or be maintained.

Article 15. Channels for the Presentation and Response to Complaints and Requirements
15.1 Companies must make available, at least two of the following channels for the presentation and response to complaints and requirements: network of public service offices, if they have them; telephone line or electronic means (website, email, among others).
15.2 Companies must implement mechanisms to receive and channel the supporting information of the complaints presented, regardless of the channel used for their presentation. The company must inform the means by which the support for complaints can be presented.

Article 16. Provisions Applicable to the Processing of Complaints and Requirements
The aspects related to the operation of the registration, processing, resolution, notification, and filing related to the management of complaints and requirements are governed by what is stipulated in the Circular.

CHAPTER II
ADDITIONAL ASPECTS APPLICABLE TO
ELECTRONIC MONEY ISSUING COMPANIES

Article 17. User Attention System and Its Dissemination
17.1 Electronic money issuers must have infrastructure and attention systems, own or third-party, that allow users to block their electronic money accounts due to, among other reasons, loss, theft, robbery, larceny, or unauthorized use of the support delivered by the issuer for the use of electronic money, or of the information it contains. Such infrastructure must be available twenty-four (24) hours a day, every day of the year.
17.2 Communications from users must be recorded in such a way that it is possible to credibly attest to their date, time, and content. For each communication, a registration code must be generated, which must be informed to the user as proof of receipt of said communication. If the client requests it, the information regarding the registration of the communication made must be sent (through physical or electronic means) and/or made available, which must at minimum consider the date, time, registration code, and reason for the communication.
17.3 Information regarding the attention systems established by electronic money issuers, to comply with what is stipulated in the preceding paragraphs, must be published on the initial page of their website, even if the blocking service is provided through a direct link to another website established by the issuer; as well as through any other medium established by the issuer.

Article 18. Liabilities Regarding Operations Not Recognized by Users
18.1 The user is not responsible for any loss in cases of unrecognized operations that are a consequence of: i) cloning of the support delivered by the issuer for the use of electronic money, ii) when the operations have been carried out after the issuer was notified of the blocking of the electronic money account, iii) impersonation of the user in the offices of electronic money issuers, or iv) defective functioning of the channels or systems made available to them by the issuer to carry out operations or of the security measures implemented in them; unless the issuer demonstrates the user's responsibility.
18.2 Electronic money issuers cannot transfer an expense or commission aimed at covering the cost associated with the contracting of insurance policies and/or protection or contingency mechanisms, which have the object of covering losses generated as a consequence of the carrying out of unrecognized operations.

FINAL COMPLEMENTARY PROVISIONS
First.- Compliance with what is stipulated in the Regulation The information that allows accrediting compliance with what is stipulated in the Regulation must be available to the Superintendence, through the mechanism it establishes.

Second.- Application of the Special Regime to those multiple-operation companies that have prior authorization from the Superintendence.
Multiple-operation companies not included in the scope of article 1 may adhere to the special regime contemplated in this regulation, with prior authorization from the Superintendence, for which they are governed by the provisions applicable to Segment A.

Article Second.- Modify article 1 of the Regulation of Market Conduct Management of the Financial System, approved by Resolution SBS No. 3274-2017 and its modifying norms, in the following terms:

“Article 1. Scope
The provisions of this norm are applicable to the companies included in letter A of article 16 of the General Law, to the Bank of the Nation, and to the Agricultural Bank.”

Article Third.- Substitute the Third Final Complementary Provision of the Regulation of Market Conduct Management of the Financial System, approved by Resolution SBS No. 3274-2017 and its modifying norms, in the following terms:

“Third.- Application of provisions on market conduct management to legal persons not included in the definition of user The provisions included in Chapter I of Title IV of the Regulation, referred to the information that must be provided to the user for the contracting of financial products and services, with the exception of article 29, are also applicable by companies to those legal persons that are not included in the scope of the definition of user.”

Article Fourth.- Substitute the Fifth Final Complementary Provision of the Regulation of Market Conduct Management of the Financial System, approved by Resolution SBS No. 3274-2017 and its modifying norms, with the following terms:

“Fifth.- Authorization for the application of the Special Regime of Market Conduct Management Companies, with prior authorization from the Superintendence, may adhere to the provisions of the Regulation of the Special Regime of Market Conduct Management, if this is justified due to their nature, size, complexity and/or volume of operations, as well as to the financial products and/or services offered and their target audience. To this effect, they must send to the Superintendence a report substantiating the reasons for the request and the motives for which they consider that the provisions contained in the Regulation, which are not part of the Regulation of the Special Regime, do not apply to them. The Superintendence may require the fulfillment of additional provisions based on the evaluated aspects. What is stated above does not limit that, if in the exercise of its supervisory powers, the Superintendence determines that the granted authorization is not concordant with the company's operation or the situation that originated it becomes non-existent, it may leave the application of the Special Regime without effect.”

Article Fifth.- Incorporate into the Single Text of Administrative Procedures of the Superintendence of Banks, Insurance, and Private Pension Fund Administrators, approved by Resolution No. 1678-2018 and its modifying norms, Procedure No. 192 “Authorization to apply the Special Regime of Market Conduct of the Financial System”, which is regulated in accordance with the text attached to this resolution and is published in accordance with what is stipulated in Supreme Decree No. 004-2008-PCM, Regulation of Law No. 29091. (Institutional Portal: www.sbs.gob.pe).

Article Sixth.- Repeal the provisions contained in Title III of the Regulation of Electronic Money Operations approved by Resolution SBS No. 6283-2013.

Article Seventh.- Substitute article 2 of the Regulation of Basic Accounts, approved by Resolution SBS No. 2891-2018, as follows:

“The contracting of basic accounts is governed by the provisions of this chapter, as well as by the articles of Title III, IV, and V of the Special Regime, referred to the transparency and contracting provisions, which regulation is applicable complementarily to the provisions contemplated in this chapter, as appropriate.”

Article Eighth.- Modify the last paragraph of article 8 of the Regulation of Electronic Money Operations, approved by Resolution SBS No. 6283-2013 with the following text:
Article 8.- General Regime of Due Diligence in Customer Knowledge
(...)
In the case of foreigners, the company must verify the information with the database of the Central Registry of Foreigners of the General Directorate of Migrations and Naturalization, which may be carried out after the opening of the electronic money account.

Article Ninth.- Incorporate into Annex No. III
3 of the User Attention Circular, Circular No. G – 184 – 2015, the complaint reason codes No. 107, 108, 109, 110, and 111

CODE OPERATIONS – SERVICES – PRODUCTS 2
107 Contractual modifications of the credit - Dissatisfaction due to lack of delivery or delay in communications 108 Contractual modifications of the credit – Dissatisfaction regarding new conditions applied 109 Contractual modifications of the credit - Dissatisfaction due to problems in carrying out reversals 3 Refers to Annex III

110 Contractual modifications of the credit – Dissatisfaction due to inadequate information on modification conditions and/or reversal procedure 111 Contractual modifications of the credit - Other reasons

2 In case the reason for the complaint relates to more than one of the typologies, it must be registered in the most specific one. Example: If the complaint refers to delay in the sending of communications of contractual modifications of the credit, it corresponds to register it in code 107 and not in 19.

Article Tenth.- This Resolution enters into force thirty (30) days counted from the day following its publication in the Official Gazette El Peruano. The quarterly reports referred to in article nine of this Resolution are presented starting from January 2021, whose first delivery must contain information from the period of the last quarter of 2020.

Register, communicate, and publish

SOCORRO HEYSEN ZEGARRA
Superintendent of Banks, Insurance, and
Private Pension Fund Administrators