Superintendence Resolution No. 063-2025-SMV/10

PERÚ Ministry of Economy and Finance

SMV
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Assistant Superintendent Resolution SMV
No. 063-2025-SMV/10
Lima, December 30, 2025

Sumilla: The reconsideration appeal filed by Fonbienes Perú EAFC S.A. against Assistant Superintendent Resolution SMV No. 039-2024-SMV/10 is declared unfounded.

Administered Entity: Fonbienes Perú EAFC S.A.
Subject: Reconsideration appeal against Assistant Superintendent Resolution SMV No. 039-2024-SMV/10 File No.: 2023032068

The Assistant Superintendent of Prudential Supervision

VIEWED:

Administrative file No. 2023032068, the reconsideration appeal presented by Fonbienes Perú EAFC S.A. and Report No. 1132-2024-SMV/10.3, issued by the General Superintendent of Prudential Compliance; and

CONSIDERING:

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

I. Background

By Assistant Superintendent Resolution SMV No. 039-2024-SMV/10 of July 15, 2024 (hereinafter, RESOLUTION), Fonbienes Perú EAFC S.A. (hereinafter, FONBIENES EAFC) was sanctioned with three (3) warnings and a fine of 9.69 UIT, for having committed six (6) 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 submit periodic information within the deadline established by the applicable regulations, corresponding to interim financial information and management report;

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By letter presented on August 9, 2024, FONBIENES EAFC filed an appeal against the RESOLUTION;
The reconsideration appeal has been evaluated by the General Superintendent of Prudential Compliance in Report No. 1132-2024-SMV/10.3, which has been submitted to the knowledge of this Assistant Superintendence;
In observance of the Principle of Due Process contemplated in Article IV, subsection 1, numeral 1.2, of the Preliminary Title, as well as in Article 248, subsection 2 of the Single Text of the General Administrative Procedure Law, Law No. 27444, approved by Supreme Decree No. 004-2019-JUS (hereinafter, TUO OF THE LPAG) and Article 18 of the SANCTIONS REGULATION of the SMV, by Letter No. 3840-2024-SMV/10, the administrative file to which this resolution refers was made available to FONBIENES EAFC for its review;

II. On the Admissibility of the Reconsideration Appeal

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 Superintendence of Prudential Supervision to resolve reconsideration appeals against the resolutions it issues;
Likewise, it has been verified that the reconsideration appeal was presented within the fifteen (15) days established by Article 218 of the TUO of the LPAG;
Pursuant to Article 219 of the TUO of the LPAG, the reconsideration appeal is filed before the same body that issued the act subject to appeal 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. On the Arguments Presented by FONBIENES EAFC

FONBIENES EAFC requests that the sanction imposed in the RESOLUTION be reduced by 50% or that a minimum fine be imposed;
FONBIENES EAFC bases its request on the fact that regarding the evaluation of the sanction, the evaluation criteria established in the SANCTIONS REGULATION, in the Regime of Gradual Sanctions for late submission of financial information, annual report and material events, approved by SMV Resolution No. 007-2023-SMV/01 of September 4, 2023 (hereinafter, REGIME OF GRADUAL SANCTIONS) and the application of the mitigating factor established in Article 257, numeral 2, letter a) of the TUO of the LPAG must be taken into account;
In this sense, it indicates that, on July 15, 2024, they were notified of the RESOLUTION and that although it is stated in consideration 86 of the RESOLUTION that the non-compliance with the regulation on the timely submission of periodic information affects transparency in the Collective Funds System, violating the right of the participants in this system, as well as the public in general, by not being able to access such information in a timely manner, they consider that this is a harm that cannot be proven or valued based on a simple

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assumption, without harm caused to its associates or the public in general having been proven, nor its repercussion in the market, since it has not been evidenced that the analyzed non-compliances have produced a complete quantifiable harm in the market;

Likewise, FONBIENES EAFC points out that consideration 101 of the RESOLUTION mentions "(...) it must be added that the arguments presented by FONBIENES EAFC as a defense make the declaration made by the administrator of a supposed recognition even more imprecise, ambiguous and interpretative, so that considering the context of what is established by the TUO of the LPAG and the SANCTIONS REGULATION, as well as the pronouncement of doctrine on the matter, the declarations made by FONBIENES EAFC could not be considered as a mitigating condition for the responsibility of the commission of the infraction. (...);" in this sense it indicates that, the declarations made in its defense were with the sole purpose of contributing to the clarification of the infractions incurred so that the Superintendence takes into account that FONBIENES EAFC did not have intent in the commission of the infractions, nor has it obtained any type of benefit that is directly related to the imputed infractions;
Regarding this, FONBIENES EAFC states that, even more considering that in its defense they manifested the admission to the imputed infractions, according to the following: "(...) we must allege that during the COVID-19 period it was a case of fortuitous event and force majeure in which at the national and world level all companies were obliged to keep restrictions being that these prevented us from complying with our obligations as they correspond and within the indicated timeframe, that is why we formulate ADMITTANCE, since this fortuitous event prevented us from complying with the regulation that governs us. (...);";
Thus also, regarding the recognition of the infraction as a mitigating factor, they allege that, both in the defenses of August 4, 2023 and April 24, 2024, they recognized the commission of the infractions, recognition that was presented within the deadline granted for the presentation of defenses. In this sense, they make textual mention of the following, corresponding to the defenses of August 4, 2023:

"Regarding the existence or not of intent in the infringer's conduct:
In this respect, the General Superintendent can verify that there was no intent on the part of Fonbienes. Which can be corroborated that, Fonbienes took notice of the fault in which it had incurred proceeded to remedy it immediately, always seeking the best solution.
Finally, we request the superintendent to take into consideration subsection a) of Article 26 of Resolution SMV No. 035-2018-SMV-01 which establishes the following:
Article 26.- MITIGATING CONDITIONS OF RESPONSIBILITY FOR INFRACTIONS
The following constitute mitigating conditions of responsibility for infractions:
a) Express and written recognition of responsibility by the infringer, once the administrative sanctioning procedure has begun. When the applicable sanction is a fine, it is reduced, taking into account the following:

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1. If the recognition of the infraction is presented within the deadline granted for the presentation of defenses, the amount of reduction will be fifty percent (50%). (Underline added)."

15. Additionally, they make textual mention of the following, corresponding to the defenses of April 24, 2024:

"Regarding the above, the Assistant Superintendence can verify that the events occurred due to external causes, however as can be seen Fonbienes complied with sending the requested information with the greatest possible speed, in addition to that and as established by Article 26 of the aforementioned regulation, it sought to contribute to the clarification of the requested documentation. In this sense, the Superintendence can verify that Fonbienes took advantage of the mitigating factor of responsibility of the cited norm from the first opportunity, recognizing its responsibility expressly and in writing as established by Article 257 subsection 2 a. of the T.U.O. of the LPAG:"

In this sense, FONBIENES EAFC States that it has recognized from the first moment the commission of the infractions, and in addition to the arguments presented, it corresponds to apply what is stated in Article 26 of the SANCTIONS REGULATION, which regulates the mitigating factors of responsibility for infractions, stating in its subsection a) that in the case that the recognition of the infraction is presented within the deadline granted for the presentation of defenses, the amount of the reduction is 50% when the applicable sanction is a fine; which is observed in the present case, according to FONBIENES EAFC;

IV. Evaluation of the Arguments Presented

This analysis must begin by clarifying, regarding the application of the SANCTIONS REGULATION and the REGIME OF GRADUAL SANCTIONS in the evaluation of the sanction as pointed out by FONBIENES EAFC,

that the evaluation of said regulation has been taken into account in the RESOLUTION, in whose consideration 48 it is stated that for the purpose of determining the sanction for the infractions subject to evaluation and according to what is established in subsection 3.2 of the "Criteria Applicable to the Administrative Sanctioning Procedure for Non-compliance with Regulations Regulating the Submission of Periodic or Occasional Information", approved by SMV Resolution No. 006-2012-SMV/01 and its amendment (hereinafter, SANCTION CRITERIA), the evaluation criteria established in Article 248, numeral 3, of the TUO OF THE LPAG, in Article 7 of Legislative Decree No. 21907 on Collective Funds Companies, modified by Law No. 27659, in Article 25 of the SANCTIONS REGULATION, as well as in subsection 4.1 of the SANCTION CRITERIA;

Likewise, regarding the REGIME OF GRADUAL SANCTIONS, it must be noted that said regulation has also been evaluated in the evaluation of the sanction to be imposed as observed in the RESOLUTION, since in

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considerations 681 and 692 its evaluation is carried out to determine if said regulation was more favorable for the administered entity or, if so, whether the application of the SANCTION CRITERIA corresponded. As well as its evaluation is also observed in consideration 853 of the RESOLUTION, in order to determine the application or not of a warning sanction, according to the parameters established in said regulation;

Regarding the application of the mitigating factor established in Article 257, numeral 2, letter a) of the TUO of the LPAG, in the evaluation of the sanction, it must be indicated, as already stated in the RESOLUTION in its consideration 98, based on what was previously stated in its considerations 95, 96 and 97, that for said recognition to be configured as a mitigating factor of responsibility, it must be unequivocal, without ambiguities and without generating any doubt about what is expressed, that is, the administration cannot interpret or extract from what is stated by the administered entity that it is a voluntary recognition of the commission of the administrative infraction imputed according to the aforementioned normative text;
FONBIENES EAFC also alleges that, although in consideration 86 of the RESOLUTION it is stated that, the non-compliance with the regulation on the timely submission of periodic information affects transparency in the Collective Funds System, violating the right of the participants in this system, as well as the public in general, by not being able to access such information in a timely manner, this is a harm that cannot be proven or valued based on a simple assumption, without harm caused to its associates or the public in general having been proven, nor its repercussion in the market, since it has not been evidenced that the analyzed non-compliances have produced a complete quantifiable harm in the market;
Regarding this, in principle it must be clarified that consideration 86 of the RESOLUTION states the following textually:

"86. Indeed, regarding the condition referred to that the affectation to transparency in the market is minimal, it must be warned in principle and as has been mentioned in the evaluation of the sanction criteria, that any non-compliance with the regulation

1 "68. On the other hand, the Regime of Gradual Sanctions for late submission of financial information, annual report and material events, approved by SMV Resolution No. 007-2023-SMV/01 of September 4, 20231 (hereinafter, REGIME OF GRADUAL SANCTIONS), in force from January 1, 2024, establishes in Article 6, numeral 6.1 that the warning sanction may be applied when the following circumstances occur concurrently: a) When the affectation to transparency in the market is minimal. This statement is linked to the criterion of the gravity of the harm to the public interest and/or protected legal good; b) The infraction committed has not caused concrete harm to investors or associates; c) The infringing subject does not have antecedents or having them they are sanctions corresponding to minor infractions imposed by the SMV that had become final in the four (4) years prior to the commission of the infraction being evaluated; d) The infringing subject is not a recidivist; e) The infringer has not obtained benefits from his administrative infraction; and, f) It has not been accredited that the infringer acted with intent in the commission of the infraction; 2 "69. In this sense, the evaluation of the circumstances for the application of a warning sanction established in the SANCTION CRITERIA as well as in the REGIME OF GRADUAL SANCTIONS corresponds, in order to determine if the REGIME OF GRADUAL SANCTIONS is more favorable for the administered entity or, if so, the application of the SANCTION CRITERIA corresponds;" 3 "85. However, it must be indicated that, according to what is established in the SANCTION CRITERIA and the REGIME OF GRADUAL SANCTIONS, the infractions analyzed in this part of the report do not meet the requirement of minimal affectation to the principle of transparency, so it does not correspond to apply a warning sanction;"

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regarding the deadlines established to submit periodic information, affects the transparency of the collective funds system, even more if this non-compliance persists over time;"

As can be appreciated from said consideration 86 of the RESOLUTION, although it states that any non-compliance with the regulation regarding the deadlines established to submit periodic information affects the transparency of the collective funds system, as a legal good, even more if this non-compliance persists over time, it has not been affirmed in the RESOLUTION that the non-compliances evaluated in the referred resolution have produced any quantifiable harm to any associate or to the market; indeed in consideration 604 of the RESOLUTION it indicates textually that it has not been evidenced that the infractions in which FONBIENES EAFC has incurred have produced a concrete quantifiable harm in the market, that is, it has not been determined that there has been concrete affectation or caused economic damage to one or more associates, so it has not been evidenced that there has been repercussion in the collective funds system;
Now, FONBIENES EAFC also argues, regarding what was expressed in consideration 101 of the RESOLUTION, that the declarations made in its defense were with the sole purpose of contributing to the clarification of the infractions incurred so that the Superintendence takes into account that FONBIENES EAFC did not have intent in the commission of the infractions, nor has it obtained any type of benefit that is directly related to the imputed infractions, even more considering that in its defense they manifested the admission to the imputed infractions, according to the following: "(...) we must allege that during the COVID-19 period it was a case of fortuitous event and force majeure in which at the national and world level all companies were obliged to keep restrictions being that these prevented us from complying with our obligations as they correspond and within the indicated timeframe, that is why we formulate ADMITTANCE, since this fortuitous event prevented us from complying with the regulation that governs us. (...);";
Thus also, according to FONBIENES EAFC, both in the defenses of August 4, 2023 and that of April 24, 2024, they recognized the commission of the infractions, recognition that was presented within the deadline granted for the presentation of defenses. They substantiate this with the image of the relevant part of the defenses of August 4, 2023, in which they request to take into consideration subsection a) of Article 26 of Resolution SMV No. 035-2018-SMV/01, as well as with the relevant image of the defenses of August 4, 2023, in which they state that FONBIENES EAFC took advantage of the mitigating factor of responsibility from the first opportunity, recognizing its responsibility expressly and in writing as established by Article 257, subsection 2 a. of the TUO of the LPAG,;
In this way, FONBIENES EAFC states that it corresponds to apply what is stated in Article 26 of the SANCTIONS REGULATION, which regulates that in the case that the recognition of the infraction is presented within the deadline granted for the presentation of defenses, the amount of the reduction is 50% when the applicable sanction is a fine; which is observed in the present case;

4 "60. In the present case, it has not been evidenced that the infractions in which FONBIENES EAFC has incurred have produced a concrete quantifiable harm in the market, that is, it has not been determined that there has been concrete affectation or caused economic damage to one or more associates, so it has not been evidenced that there has been repercussion in the collective funds system;"

PERÚ Ministry of Economy and Finance

Regarding said arguments, it must be clarified that, in the defenses presented on August 4, 2023 FONBIENES EAFC not only presented arguments directed to point out that there was no intent in the commission of the infractions, that they did not obtain any type of benefit that is directly related to the infractions and that the COVID-19 period prevented the fulfillment of their obligations, which was disproven as seen in the considerations from 27 to 31 of the RESOLUTION, but also presented a set of arguments that were directed to disclaim their responsibility, such as those referring to the non-existence of valid legal support to sanction them; that the infractions imputed to them had not been configured and therefore should not be sanciona

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