SUPERINTENDENCY OF BANKING, INSURANCE AND AFP Republic of Peru

Lima, 16 September 2022

Resolution S.B.S. No. 2843-2022 The Superintendent of Banking, Insurance and Private Pension Fund Administrators

CONSIDERING:

That, by Supreme Decree No. 054-97-EF, the Single Ordered Text (TUO) of the Law of the Private Pension System was approved, hereinafter the SPP Law;

That, by Supreme Decree No. 004-98-EF, the Regulation of the aforementioned TUO of the SPP Law was approved;

That, by Law No. 28991, published in the Official Gazette El Peruano on 27 March 2007, the Law regulating free informed disaffiliation, minimum and complementary pensions, and special early retirement regime was approved;

That, by Supreme Decree No. 063-2007-EF, the Regulation of Law No. 28991 was approved, which establishes the conditions and general guidelines regarding the requirements and procedures for free informed disaffiliation, minimum and complementary pensions, as well as the special early retirement regime;

That, by SBS Resolution No. 1041-2007, the Operating Regulation for free informed disaffiliation and the special early retirement regime of the Private Pension System was approved, to which Law No. 28991 and Supreme Decree No. 063-2007-EF refer, which establishes the operational provisions that allow the exercise of rights and benefits linked to the free informed disaffiliation procedure and the special early retirement regime and return to the National Pension System referred to in Decree Law No. 19990;

That, complementarily, by article 3 of Law No. 28389, published in the Official Gazette El Peruano on 17 November 2004, the First Final and Transitory Provision of the Political Constitution of Peru was amended, with the purpose of definitively declaring closed the pension regime of Decree Law No. 20530. Consequently, as of the entry into force of this constitutional reform, new incorporations or reincorporations to the pension regime of Decree Law No. 20530 are not permitted and, likewise, workers who, belonging to said regime, have not met the requirements to obtain the corresponding pension, must choose between the National Pension System or the Private Pension Fund Administrators System;

That, the Constitutional Court in ground 2.1 of numeral 3 of the judgment of File No. 00014- 2007-PI/TC published on 15 May 2009, made an interpretive clarification to the concept of National Pension System, providing that

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normative concept comprises both the pension regime regulated by Decree Law No. 19990 and that regulated by Decree Law No. 20530;

That, in that sense, the Superintendency, by SBS Resolution No. 2906-2021, published on 1 October 2021 in the Official Gazette El Peruano, approved the operating regulation for the free informed disaffiliation of the Private Pension System (SPP) of members who are entitled to a pension in the Public Pension System (SPuP) regulated by Decree Law No. 20530;

That, once the aforementioned operating regulation entered into force, in practice some aspects have been noticed that must be modified in order to seek continuous improvements to the process and achieve greater efficiency in the procedures carried out by members, so it is necessary to modify the operating regulation, regarding the process of accreditation of entry to the Public Pension System – SPuP – D.L. No. 20530 as well as regarding the refund procedure that the member must carry out in case they have withdrawn their pension fund due to the effects of Laws No. 30425, 30478 and other provisions of extraordinary fund withdrawals;

That, in addition to this, it is necessary to specify the treatment to be followed with those members who maintain mandatory contributions in the Individual Capitalization Account (CIC) different from the regime of D.L. No. 20530 once they have obtained their disaffiliation under this operating procedure; likewise, the procedure to be followed must be established in the case of those members who request the refund of their mandatory contributions from the SPP once they have accredited their status as pensioners in the pension regime regulated by D.L. No. 20530;

That, on the other hand, it is important to note that on 9 May 2021, Urgency Decree No. 044-2021 was published in the Official Gazette El Peruano, in whose article 4 it provides that, in the case of members who choose to disaffiliate from the Private Pension System (SPP) or for access to any benefit with state guarantee in the SPP, before initiating their processing, the Pension Fund Administrators (AFP) must verify the integrity of the respective Individual Capitalization Account (CIC), free of voluntary contributions without pension purpose; and if applicable, the value of the Recognition Bonus or the Recognition Bonus Title, and must require, as a requirement for the initiation of the procedure, that the refund of any amount that has been withdrawn before initiating its processing be accredited, without prejudice to the payment of the amount owed for the contribution differential in accordance with the rules on the matter;

That, in that line of argument, modifications must be established to the operating procedure to access Free Informed Disaffiliation, set forth in Law No. 28991, approved by SBS Resolution No. 1041-2007, in order to standardize the content of the sworn declaration that the member must sign before submitting the free disaffiliation request, in case they have made withdrawals from their pension fund;

That, additionally, it is necessary to amend the Operating Regulation for the free informed disaffiliation and special early retirement regime of the SPP, as well as the Operating Regulation that provides the administrative procedure for disaffiliation from the SPP due to lack of information at the time of joining the SPP, to which the cause provided by the Constitutional Court refers, according to judgments issued in Files No. 1776-2004-AA/TC and No. 07281-2006-PA/TC, approved by SBS Resolution No. 11718-2008, with the purpose of standardizing the content of the sworn declaration that the

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member must sign before submitting the free disaffiliation application under this cause, in the event that withdrawals have been made from their pension fund;

That, in order to gather the opinions of the general public regarding the proposed amendments to the SPP regulations, the pre-publication for thirty (30) calendar days of the draft resolution on the matter was ordered on the Superintendency's electronic portal, under the provisions of Supreme Decree No. 001-2009-JUS and its amendments;

With the approval of the Deputy Superintendencies of Private Pension Fund Administrators and of Legal Counsel; and,

In use of the powers conferred by numeral 9 of article 349 of the General Law of the Financial System and the Insurance System and Organic Law of the Superintendency of Banking and Insurance, Law No. 26702 and its amendments, and subsection d) of article 57 of the Law of the Private Pension Fund Administration System;

RESOLVES:

Article One.- Amend article 4, referring to the accreditation of entry into the SPuP -D.L. No. 20530 and numerals 1.5, 2.1, 3 and 6.2 of article 5, referring to the procedure for informed disaffiliation from the SPP, of the Operating Regulation for the Free Informed Disaffiliation of the Private Pension System of members who are entitled to a pension in the Public Pension System regulated by Decree Law No. 20530, approved by SBS Resolution No. 2906-2021, as follows:

(…)

Article 4.- Accreditation of entry into the SPuP – D.L. No. 20530

To accredit entry into the Public Pension System, the member must submit the following documentation:

(…)

b) Administrative resolutions of employment contract, replacement, substitution or others of a similar nature.

(…)

In the event of not having any of the listed documents, the member may submit in their replacement some other document of a similar nature, which substitutes those described above. (...)

(…)

Article 5.- Procedure for informed disaffiliation from the SPP.

(…)

1.5. The AFP sends the RESIT-SPP to the ONP, within five (5) days of receiving the member's conformity to said report, under the conditions established by the Superintendency, or upon expiration of the term to file a claim regarding said document, so that the evaluation process of the member's application is completed and it can determine whether the member meets the

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requirements that will allow them to disaffiliate, as well as for the determination of the contribution differential, and the estimated pension value in the SPuP. (…)

2.1. The ONP, once it has received the file referred to in subsection a) of numeral 1.4, proceeds to carry out the verifications related to the services provided by the member within the SPuP– D.L. No. 20530. (…)

3. Commitments of the member

3.1. In accordance with the provisions of articles 5 and 6 of Law No. 28991 and article 4 of its Regulation, the balance of the CIC referred to in paragraph iv of numeral 1.4 of article 5 of this regulation comprises the totality of contributions made as a member of the SPP, therefore it is specified that, before signing the free disaffiliation application, the member must submit a Sworn Declaration in which they declare to know and carry out the procedure provided by each AFP for the restitution of all funds, in the event that resources have been withdrawn due to Laws No. 30425 and No. 30478 as well as other provisions related to extraordinary and optional withdrawals from pension funds, in which case said restitution is expressed in installments, at the unit value registered on the date. For this purpose, the AFP must previously coordinate with the member the conditions and manner for them to make the restitution to the AFP of all withdrawn funds.

Once such restitution of funds has been made, the member submits to the AFP Sections I and II of the Disaffiliation Application Form, which must expressly state the following: (…)

The procedure is concluded, in the event that the member submits their withdrawal from continuing with the disaffiliation procedure in accordance with the provisions of the Single Ordered Text of Law No. 27444. The AFP must communicate this situation to the ONP on the third business day of the week following that in which the written request was submitted, so that this entity takes note of such circumstance. The foregoing does not prevent the member from subsequently submitting a new disaffiliation application, at the time they deem convenient. (…).

(…) 6.2. In accordance with the provisions of article 1 of the Regulation of Law No. 28991, the Resolution authorizing disaffiliation does not generate automatic pension in the SPuP-D.L. No. 20530, since the member must carry out their procedure before the State Institutions that administer the regime of D.L. No. 20530, or the ONP, if it corresponds to State Institutions that are liquidated and/or transferred to it. (…)

Article Two.- Incorporate numerals 4.2, 4.3 and 4.4 into Article 5, referring to the procedure for the informed disaffiliation from the SPP, of the Operating Regulations for the Free Informed Disaffiliation from the Private Pension System of members entitled to a pension in the Public Pension System, regulated by Decreto Ley N° 20530, approved by Resolución SBS Nº 2906-2021, the following text:

"(…)

4. Proof of having complied with any of the disaffiliation assumptions.

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(…) 4.2. Once the ONP issues the RESIT SPuP, it is possible to differentiate which contributions from the SPP must be transferred to the SPuP, as they correspond to D.L N° 20530.

4.3. Contributions corresponding to private sector employers or corresponding to public entities for different service periods during which there was an obligation to contribute to the regime of Decreto Ley N° 20530, remain under the administration of the AFP, so the member's status remains active, for which purpose the pertinent provisions included in Titles V and VII of the Compendium of Regulatory Superintendency Rules of the SPP are applicable.

4.4. If the member continues making contributions to the SPP as a result of work in the private sector, they may process the return of their contributions generated after obtaining pensioner status in the SPuP-D.L. N° 20530, in accordance with the provisions of Circular N° AFP- 125-2012. (…)".

Article Three.- Replace subsection v of numeral 1, section 1.2 of Article 5 of the Operating Regulations for the free informed disaffiliation and the special early retirement regime of the Private Pension System referred to in Ley N° 28991 and Decreto Supremo N° 063-2007-EF, approved by Resolución SBS N° 1041-2007, with the following text:

"Article 5.- Procedure for the informed disaffiliation from the SPP

Numeral 1: Application for disaffiliation from the SPP and compliance with requirements

(…) 1.2 (…)

v. Before signing the free disaffiliation application, the member must submit a Sworn Statement declaring that they are aware of and will carry out the procedure provided by each AFP for the restitution of all funds, in the event they had withdrawn resources as a result of Leyes Nº 30425 and N° 30478 as well as other regulatory provisions related to extraordinary and optional withdrawals from pension funds, in which case said restitution is expressed in quotas, at the quota value recorded on the date. For this purpose, the AFP must previously coordinate with the member the conditions and manner to carry out the restitution of the funds. (…)"

Article Four.- Replace subsection vi of numeral 1, section 1.2 of Article 4 of the Operating Regulations that provides the administrative procedure for disaffiliation from the SPP on the grounds of lack of information, issued by the Constitutional Court, according to judgments in Expedientes N° 1776-2004-AA/TC and Nº 07281-2006-PA/TC, approved by Resolución SBS Nº 11718 -2008 and amendments, with the following text:

"Article 4.- Procedure for disaffiliation from the SPP on the grounds of lack of information

Numeral 1: Application for disaffiliation from the SPP

(…) 1.2 (…)

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vi. Before signing the free disaffiliation application, the member must submit a Sworn Statement declaring that they are aware of and will carry out the procedure provided by each AFP for the restitution of all funds, in the event they had withdrawn resources as a result of Leyes Nº 30425 and N° 30478 as well as other regulatory provisions related to extraordinary and optional withdrawals from pension funds, in which case said restitution is expressed in quotas, at the quota value recorded on the date. For this purpose, the AFP must previously coordinate with the member the conditions and manner to carry out the restitution of the funds. Likewise, the mere submission of Section II of the corresponding application entails rendering ineffective the transfer, fund change, relocation, nullity, multi-affiliation, transfers of funds abroad or others that involve movement of the CIC, as established by the SBS, as well as that it will not be possible to initiate a BdR procedure while the disaffiliation application is under evaluation, that is, from the submission of the aforementioned Section II. (…)".

Article Five-. This Resolution enters into force from the day following its publication in the Official Gazette "El Peruano", with an adaptation period of 30 calendar days.

Register, communicate and publish.

MARÍA DEL SOCORRO HEYSEN ZEGARRA
Superintendent of Banking, Insurance and AFP