Lima, 13 August 2019

S.B.S. Resolution No. 3693-2019

The Superintendent of Banking, Insurance and Private Pension Fund Administrators

CONSIDERING:

That, by Supreme Decree No. 054-97-EF, the Single Ordered Text of the Law of the Private Pension Fund Administration System was approved, hereinafter the TUO of 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, the Law on informed free disaffiliation, minimum and complementary pensions, and special early retirement regime was approved, which establishes the regulatory framework for the disaffiliation and return to the National Pension System (SNP) of members of the Private Pension System (SPP), for which purpose the balance of the Individual Capitalization Account (CIC), free of voluntary contributions without pension purpose and, if applicable, the value of the Recognition Bond or the Recognition Bond Certificate, must be transferred directly to the Office of Pension Normalization (ONP);

That, by Laws No. 30425 and No. 30478, the possibility was established for members who meet the conditions to access a retirement regime in the SPP to choose between receiving the pension corresponding to them in any retirement modality or requesting the AFP to deliver up to 95.5% of the total available fund in their mandatory contribution CIC, in the installments they consider necessary, if applicable;

That, based on the provisions of the aforementioned laws, by SBS Resolution No. 2370-2016, the Operating Procedure (PO) was approved for the exercise of options by the member when they access retirement by reaching the legal age or access the Special Early Retirement Regime for Unemployed Persons in the Private Pension System (REJA);

That, given this regulatory framework of greater flexibility regarding retirement and/or pension options in the SPP, which allows members to have various possibilities and/or combination options regarding the administration of the balance of their CIC, accumulated throughout their working life, it is necessary to specify that members who make use of their pension fund under the option of withdrawal of up to 95.5% as well as the use of up to 25% of their mandatory contribution CIC, for the payment of the down payment or amortization of a mortgage loan intended for the purchase of a first property, must restore to their CIC the entirety of the funds they have withdrawn, including the number of installments that were subject to withdrawal, in order to

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subsequently access the Informed Free Disaffiliation in order to return to the SNP, complying with the provisions of article 6 of Law No. 28991 regarding the determination of the resources that will become part of the SNP;

That, in this line of argument, modifications must be established to the operating procedure set forth in Law No. 28991, approved by SBS Resolution No. 1041-2007, in order to access the Informed Free Disaffiliation as described in the preceding paragraph, since the balance of the CIC to be transferred to the ONP would be incomplete or null, as a result of the exercise of the withdrawal option made by the members within the framework of the provisions of the aforementioned Laws No. 30425 and 30478;

That, additionally, in order to comply with the provisions of article 6 of Law No. 28891, it is necessary to modify the Operating Regulation for informed free 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 incorporation into the SPP, to which the cause established by the Constitutional Court refers, according to judgments handed down in Files No. 1776-2004-AA/TC and No. 07281-2006-PA/TC, approved by SBS Resolution No. 11718-2008, so that those members who make use of their pension fund under the option of withdrawal of up to 95.5% as well as the use of up to 25% of their mandatory contribution CIC, comply with restoring the entirety of the funds they have withdrawn, valued at the date based on the number of installments that were subject to withdrawal, in order to subsequently access the presentation of the application for Informed Free Disaffiliation and thus return to the scope of the SNP;

That, likewise, it is convenient to establish modifications to the Operating Procedure approved by SBS Resolution No. 1750-2004, to request disaffiliation from the SPP of those former workers affiliated with an AFP covered under the scope of the Single Complementary and Final Provision of Law No. 28299, amending Law No. 27803; in order to specify that they must restore the entirety of the funds they have withdrawn from the Individual Capitalization Account of mandatory contributions, valued at the date based on the number of installments that were subject to withdrawal, since it constitutes a prior condition to access the presentation of the application for informed disaffiliation from the SPP;

That, on the other hand, it is noted that in cases of members who have disposed of up to 95.5% for having reached the legal retirement age or accessing the REJA, or have made use of up to 25% of their mandatory contribution CIC, they could subsequently request access to a pension benefit within the framework of the Social Security Agreements signed by the Republic of Peru, for which purpose the totalization of the mandatory contributions made is required so that they count in the certification of periods and consequently access the pension benefit in the counterpart country; therefore, members must be informed about the effects and implications generated by having opted for such withdrawal;

That, in addition to this, it is necessary to define the time limits regarding the figure of abandonment of the procedure, in the event that the member has not expressed their conformity with the information contained in the RESIT-SPP within a reasonable period, and therefore the aforementioned Operating Regulations set forth in the referred SBS Resolutions No. 1041-2007 and No. 11718-2008 must be amended;

That, on the other hand, it is important to establish amendments regarding the deadline set for the compensation of undue contributions to the National System of

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Pensions (SNP), contained in the third bullet of numeral 2.3.1 of article 5 of the Operating Regulations for free informed disaffiliation and the special early retirement regime of the Private Pension System, approved by SBS Resolution No. 1041-2007 and its amendments, since only the compensation of those contributions that were paid to the SNP before the entry into force of the aforementioned operating regulation, that is, up to before 30.07.2007, is allowed, a situation that harms the members due to the effect of undue payments to another pension system after the aforementioned date, generating debt for the differential of those contributions;

That, in order to gather the opinions of the general public regarding the proposals to amend the regulations of the SPP, the pre-publication 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, of Market Conduct and Financial Inclusion, and of Legal Advice; 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 amending norms, subsection d) of article 57 of the Single Ordered Text of the Law of the Private System of Pension Fund Administration, approved by Supreme Decree No. 054-97-EF and its amending norms;

RESOLVES:

Article One.- To replace subsection v of numeral 1, section 1.2 of Article 5 and to replace the heading as well as to incorporate a second paragraph in Article 9 of the Operating Regulations for free informed disaffiliation and the special early retirement regime of the Private Pension System referred to in Law No. 28991 and Supreme Decree No. 063-2007-EF, approved by SBS Resolution No. 1041-2007, under the following texts:

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

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

(…) 1.2 (…) v. Sworn statement of having been informed regarding the requirements to access disaffiliation, as well as the procedure to follow for the restitution of all withdrawn funds, including the number of quotas that were subject to withdrawal, due to the availability of resources referred to in Laws No. 30425 and No. 30478. (…)."

"Article 9.- Incompatibility of procedures within the SPP

(…) In accordance with the provisions of articles 5 and 6 of the Informed Disaffiliation Law, article 4 of its Regulation and section ii.3 of numeral 1.4 of article 5 of this operating regulation, the balance of the CIC referred to in section ii.4, as well as subsection d) of numeral 5.4 of the

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present regulation, comprises all mandatory contributions made in the capacity of member of the SPP, and therefore it is specified that, in the event that the pension resources had been affected by the availability referred to in Laws No. 30425 and No. 30478, for an application for disaffiliation from the SPP to proceed, all withdrawn funds must have been restored in the AFP, valued on the date based on the number of quotas that were subject to withdrawal. For this purpose, the AFP must previously coordinate with the member the conditions and manner to carry out the restitution of funds. (…)."

Article Two.- To replace subsection vi of numeral 1, section 1.2 of Article 4 and to replace the heading as well as to incorporate a second paragraph in Article 6 of the Operating Regulation that provides the administrative procedure for disaffiliation from the SPP on the ground of lack of information, ordered by the Constitutional Court, according to judgments handed down in Files No. 1776-2004-AA/TC and No. 07281-2006-PA/TC, approved by SBS Resolution No. 11718-2008 and amendments, under the following texts:

"Article 4.- Procedure for disaffiliation from the SPP on the ground of lack of information Numeral 1: Application for disaffiliation from the SPP

(…) 1.2 (…)

vi. Sworn Declaration of having been informed about the obligation to return all the CIC resources in the event of submitting a disaffiliation request as well as the procedure to be followed for the return of the withdrawn funds, valued at the date based on the number of quotas that were the subject of withdrawal, in those cases in which a member has opted for the withdrawal of pension funds, due to the availability referred to in Laws No. 30425 and No. 30478. Likewise, the mere submission of Section II of the corresponding request 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 request is under evaluation, that is, as of the submission of the aforementioned Section II. (…).”

“Article 6.- Incompatibility of procedures within the SPP

(…) The balance of the CIC referred to in subsection ii.4, as well as paragraph d) of numeral 5.4, comprises all mandatory contributions made in the capacity of a member of the SPP, therefore it is specified that, in the event that the pension funds had been affected by the availability of resources referred to in Laws No. 30425 and No. 30478, for a disaffiliation request from the SPP to proceed on the basis of the lack of information cause established by the Constitutional Court, all the withdrawn funds must have been returned to the AFP, valued at the date based on the number of quotas that were the subject of withdrawal. For this purpose, the AFP must previously coordinate with the member the conditions and manner to carry out the return of funds. (…).”

Article Three.- Incorporate as the last paragraph of numeral 1, subsection 1.4 of Article 4 of the Operating Regulation that provides the administrative procedure for disaffiliation from the SPP on the cause of lack of information, established by the

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Constitutional Court according to judgments issued in Files No. 1776-2004-AA/TC and No. 07281-2006-PA/TC, approved by SBS Resolution No. 11718-2008, the following text:

“(…) In the same manner, when the member fails to state their decision regarding the RESIT-SPP, whether claiming or confirming, within the maximum period of three (3) months following the period established in the previous paragraph, the procedure is abandoned, an aspect that is notified by the AFP to the ONP, within the same period indicated in the case of Numeral 3 of Article 4 of this regulation. This condition does not prevent the submission of a new disaffiliation request if the member so wishes.”

Article Four.- Incorporate as the last paragraph of numeral 1.4 of Article 5 of the Operating Regulation for free informed disaffiliation and the special early retirement regime of the Private Pension System, referred to in Law No. 28991 and Supreme Decree No. 063-2007-EF, approved by SBS Resolution No. 1041-2007, according to the following text:

“(…) In the same manner, when the member fails to state their decision regarding the RESIT-SPP, whether claiming or confirming, within the maximum period of three (3) months following the period established in the previous paragraph, the procedure is abandoned, an aspect that is notified by the AFP to the ONP, within the same period indicated in the case of Numeral 3 of Article 5 of this regulation. This condition does not prevent the submission of a new disaffiliation request if the member so wishes.”

Article Five.- Render ineffective the deadline for the compensation of undue contributions made to the National Pension System, indicated in the third bullet of numeral 2.3.1 of Article 5 of the Operating Regulation for free informed disaffiliation and the special early retirement regime of the Private Pension System, referred to in Law No. 28991 and Supreme Decree No. 063-2007-EF, approved by SBS Resolution No. 1041-2007 and its amendments.

Article Six.- Render ineffective the deadline for the compensation of undue contributions made to the National Pension System indicated in the second bullet of numeral 2.3.1 of Article 4 of the Operating Regulation that provides the administrative procedure for disaffiliation from the SPP on the cause of lack of information, established by the Constitutional Court according to judgments issued in Files No. 1776-2004-AA/TC and No. 07281-2006-PA/TC, approved by SBS Resolution No. 11718-2008.

Article Seven.- Replace literal b) of numeral 1 of Article 3 of the Operating Procedure for Disaffiliation from the Private Pension Fund Administration System (SPP), of those former workers affiliated with an AFP covered under the scope of the Sole Complementary and Final Provision of Law No. 28299, amending Law No. 27803, approved by SBS Resolution No. 1750-2004, with the following text:

“(…

b) Sworn Declaration by which they declare to know and comply with the requirements to obtain an Early Retirement pension in the SNP and to have made use of the resources of the Individual Capitalization Account (CIC) due to Laws No. 30425 and No. 30478, to prove to have returned, to the AFP, all the withdrawn funds, valued at the

date based on the number of quotas that were the subject of withdrawal, whose Annex forms an integral part of this procedure. (…).”

Article Eight.- Incorporate items i), j) and k) into the first paragraph, replace the third paragraph and incorporate three final paragraphs into Article 5 of the Operating Procedure for the exercise of the pension and/or retirement options of the member when they reach retirement age or access early retirement, approved by Resolution SBS No. 2370-2016, with the following text:

"Article 5. Step 2: (…) i) Inform the member about the implications of the withdrawal in relation to the pension insurance coverage and the granting of the disability and survivorship pension under the insurance coverage. j) Inform the member about the consequences that could arise regarding access to a retirement, disability or survivorship benefit under a Social Security Agreement. k) Inform the member about the restitution of all pension funds in the CIC, including the number of installments that were subject to withdrawal, in the event that, having accessed the withdrawal options provided by Laws No. 30425 and 30478, they subsequently decide to opt for Informed Free Disaffiliation. (…)"

"(…) In the "Certificate of Estimates of Withdrawal and/or Pension Options", for the purpose of duly complying with the provisions of subparagraphs d), e), f), g), h), i), j) and k) of this article, the AFP must inform in writing to potential member applicants for fund withdrawal, the following: (…)"

"(…) In the event that it is provided to request the delivery of a percentage less than or equal to 95.5% of the balance of their CIC of mandatory contributions under the scope of Law No. 30425, they are informed that this will affect the amount of the disability and survivorship pensions that could be generated in the SPP upon the occurrence of a disability and survivorship event under the pension insurance coverage.

Likewise, they must be informed about the effects of using the aforementioned percentages, in the event they have accessed or subsequently decide to access a pension benefit within the framework of the Social Security Agreements that the Republic of Peru has signed with other countries.

In the case of the provisions of section j), the Superintendency may, through a general instruction, establish the guidelines regarding the consequences for the application of each Agreement, in accordance with the provisions of the Liaison Bodies or Competent Authorities of the country with which a Social Security Agreement has been signed. (…)."

Article Nine.- Replace subparagraph e) of numeral 5.2 of article 5 of the Operating Procedure to provide up to 25% of the Pension Fund of the members of the Private Pension System for the purchase of a first property, approved by Resolution SBS No. 3663-2016, according to the following texts:

"Article 5.- Operating process to make use of this benefit of availability of a percentage of their CIC

"(…)

5.2. Step 2: Application of the Member before the AFP

(…)

e) Sworn statement on the part of the member acknowledging that, in the event they access the benefits provided in article 40 of the SPP Law, the retirement pension will be reduced, as well as the disability pension and the survivorship pension, as applicable, as a consequence of the withdrawal made from the balance of the CIC. Likewise, in the sworn statement they must indicate that they are aware of the implications for access to a pension benefit under a Social Security Agreement as a consequence of the withdrawal made of a percentage of the balance of the CIC, as well as the effects generated for subsequently accessing the Free Disaffiliation procedure for having previously made use of up to 25% of the CIC of mandatory contributions to pay the down payment for the purchase of a first property or for the amortization of a mortgage loan granted by a company.

Article Ten.- This resolution enters into force thirty (30) calendar days counted from the day following its publication in the Official Gazette "El Peruano".

Register, communicate and publish.

SOCORRO HEYSEN ZEGARRA
Superintendent of Banking, Insurance and Private Administrators of Pension Funds