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SMV Resolution No. 007-2024-SMV/01

Lima, 24 May 2024

WHEREAS:

File No. 2024010781, Joint Reports No. 354-2024-SMV/06/10/11/12 and No. 651-2024-SMV 06/10/11/12 of 18 March and 20 May 2024, respectively, issued by the Legal Advisory Office, the Deputy Superintendency of Prudential Supervision, the Deputy Superintendency of Market Conduct Supervision and the Deputy Superintendency of Research, Development and Innovation; as well as the draft amendment to literals j) and m) of Annex B of the Common Rules for entities that require authorization of organization and operation from the SMV (hereinafter, the Project);

CONSIDERING:

That, in accordance with the provisions of article 1 of the Single Concorded Text of the Organic Law of the Superintendency of the Securities Market approved by Decree Law No. 26126 (hereinafter, Organic Law), the Superintendency of the Securities Market (SMV) has the purpose of ensuring the protection of investors, the efficiency and transparency of the markets under its supervision, the correct formation of prices and the dissemination of all information necessary for such purposes, through regulation, supervision and promotion;

That, in accordance with literal a) of article 1 of the Organic Law, the SMV has among its functions to issue the legal rules that regulate matters of the securities market, product market and collective funds system;

That, likewise, literal b) of article 5 of the Organic Law establishes that the Board of Directors of the SMV has the attribution to approve the regulations of the securities market, product market and collective funds system, as well as those to which natural and legal persons subject to the supervision of the SMV must adhere; as well as to interpret, in the administrative venue, adhering to the provisions of common law and the general principles of law, the scope of the legal rules that govern the natural and legal persons under its supervision;

That, the last paragraph of article 1 of Law No. 29660 states that “Persons who exercise direct or indirect control, direction, or representation of persons authorized by the National Supervisory Commission of Companies and Securities (Conasev) to act in the securities market, product market and collective funds must, at all times, have economic and moral solvency, which includes, among others, presenting a track record of compliance with ethical principles and good commercial and corporate practices, and not having been sanctioned for infractions of a serious or very serious nature related to the securities market, product market and collective funds. Likewise, the aforementioned persons must not be involved in any impediment established in the applicable laws or rules.”;

That the Board of Directors of the SMV was adopting interpretive criteria regarding how “not having been sanctioned for infractions of a serious or very serious nature related to the securities market, product market and collective funds” should be understood. These criteria are recognized as an impediment in literal j) of Annex B of the Common Rules for entities that require authorization of organization and operation from the SMV, approved by SMV Resolution No. 039-2016-SMV/01 (hereinafter, Common Rules):

ANNEX B GENERAL IMPEDIMENTS

The following cannot be organizers: (…)

j) Those who have received a sanction from the SMV or SBS, which is final in the administrative venue, or from equivalent institutions abroad, corresponding to: i) serious infractions in the last ten (10) years, counted from the date the sanction became final; or ii) very serious infractions;”

That, it is necessary to specify the scope of the impediment provided in the referred literal j), in order to exclude legal persons from its scope of application and maintain it for natural persons. This is because it has been determined that a standard applicable in comparative legislation is to maintain said impediment for natural persons and only consider as an impediment for legal persons to participate as organizers, when the sanction entails a revocation of their authorization to operate, and consequently, exclude them from intervening in the financial markets;

That, in accordance with the foregoing, and in order to maintain as the sole impediment the revocation of authorization to operate and not the other very serious infractions, it is also convenient to amend literal m) of the cited Annex B of the Common Rules;

That, on 2 May 2024, the Technical Secretariat of the Multisectoral Commission for Regulatory Quality has communicated to this Superintendency that the Multisectoral Commission for Regulatory Quality, under the provisions of numeral 18 of subsection 28.1 of article 28 of the Regulation that develops the Institutional Framework governing the Regulatory Quality Improvement Process and establishes the General Guidelines for the application of the Ex Ante Regulatory Impact Analysis, approved by Supreme Decree No. 063-2021-PCM, has declared that the Ex Ante Regulatory Impact Analysis does not correspond to be carried out by the entity for the approval of the Project;

That, the Project was disseminated in public consultation on the Institutional Page of the Superintendency of the Securities Market on the Single Digital Platform of the Peruvian State (www.gob.pe/smv), for ten (10) business days, in accordance with the provisions of SMV Resolution No. 005-2024-SMV/01, published on 2 May 2024 in the Official Gazette El Peruano, during which period two (02) comments and/or suggestions were received that allowed enriching the published regulatory proposal; and,

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In accordance with the provisions of literal a) of article 1 and literal b) of article 5 of the Single Concorded Text of the Organic Law of the Superintendency of the Securities Market – SMV, approved by Decree Law No. 26126 and its amendments; as well as what was agreed by the Board of Directors in its session of 22 May 2024;

IT IS RESOLVED:

Article 1°.- Amend literals j) and m) of Annex B of the “Common rules to entities that require authorization of organization and operation of the SMV” approved by SMV Resolution No. 039-2016-SMV/01, according to the following text:

“ANNEX B GENERAL IMPEDIMENTS

The following persons cannot be organizers if they find themselves in any of the following situations:

(…)

j) Natural persons who have received a sanction from the SMV or SBS, which is final in the administrative venue, or from equivalent institutions abroad, corresponding to: i) serious infractions in the last ten (10) years, counted from the time the sanction became final; or ii) very serious infractions;

(…)

m) Natural or legal persons whose operating authorization, registration in any registry required to operate or conduct public offering of securities, or authorization of operation has been cancelled or revoked, by means of an administratively final resolution, for infraction in Peru or abroad;

(…)”

Article 2°.- Publish this resolution in the Official Gazette El Peruano and on the Institutional Page of the Superintendency of the Securities Market on the Single Digital Platform of the Peruvian State (www.gob.pe/smv).

Article .3°.- This resolution shall enter into force on the day following its publication in the Official Gazette El Peruano.

Zósimo Juan Pichihua Serna
Superintendent of the Securities Market

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"

Electronic document di gitally signed within the framework of Law No. 27269, Law of Di gital Signatures and Certificates, its Regulation and amendments.
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SMV Resolution No. 007-2024-SMV/01 amending literals j) and m) of Annex B of the Common Rules for entities requiring authorization of organization and operation from the SMV