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Superintendency Adjunct Resolution SMV No. 056-2024-SMV/11

Lima, 05 September 2024

Summary: To sanction Fabrica Peruana Eternit S.A. with one (1) reprimand for having committed one (1) minor infraction, classified in subsection 3.7 item 3 of Annex I of the Sanctions Regulations

Administered: FABRICA PERUANA ETERNIT S.A.
Asunto
: Two-instance Administrative Sanctioning Procedure administrativa Tipo Principal :
Inciso 3.7 of numeral 3 of Annex I of the Regulations of Sanciones INFRACCION LEVE File No.: 2024005999

The Deputy Superintendent of Market Conduct Supervision

VISTOS:

Administrative File No. 2024005999, containing the administrative sanctioning procedure initiated by the General Directorate of Conduct Compliance of the Superintendency of the Securities Market – SMV (hereinafter, the IGCC), against Fabrica Peruana Eternit S.A. (hereinafter, the Issuer); as well as Report No. 629-2024-SMV/11.2 (hereinafter, the Report), issued by the IGCC;

CONSIDERANDO:

I. FUNCIÓN Y COMPETENCIA DE LA SASCM

1. That the IGCC —the investigating body of the administrative sanctioning procedures (hereinafter, the PAS) referred to in this case— has brought to the attention of the Deputy Superintendency of Market Conduct Supervision of the SMV (hereinafter, SASCM) the PAS of Administrative File No. 2024005999 in order for it to issue a decision as the sanctioning body of single instance in said PAS. In this manner, the SASCM assumes jurisdiction in observance of the exercise of the supervision function and the sanctioning power of the Superintendency of the Securities Market - SMV established by the Single Consolidated Text of its Organic Law, Supreme Decree No. 26126 (in

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hereinafter, the Organic Law of the SMV), and in the Single Ordered Text of the Securities Market Law, Legislative Decree No. 861, approved by Supreme Decree No. 020-2023-EF (hereinafter, TUO of the LMV); as well as by the provisions of the Sanctions Regulations, approved by SMV Resolution No. 035-2018-SMV/01 (hereinafter, Sanctions Regulations) and in articles 42 and 43 of the Organization and Functions Regulations of the SMV, approved by Supreme Decree No. 216-2011-EF (hereinafter, ROF of the SMV), in the sense that it is a specific function of the SASCM to impose sanctions at the first administrative instance, for the commission of infringements whose compliance control, according to its competencies, corresponds to said Deputy Superintendency. Likewise, the SASCM has the powers to issue corrective measures aimed at reversing the situation altered by the commission of the infringement;

II. HECHOS, CARGO, DESCARGOS Y ALEGATOS

2.1 Hecho

2. That, it was evaluated whether the Issuer complied with its obligation to submit or keep updated the information on its Economic Group;

2.2 Cargo

3. That, from the verification of the information on the economic group published in the Economic Group section of the SMV's Institutional Website, it was observed that the Issuer submitted on 29 March 2022 the Report on its Economic Group in accordance with the Information Formats on Economic Group (File No. 2022012920), recording as of 31 December 2021 the items of total assets and equity of the companies that make up its economic group;

4. That, subsequently, on 31 March 2023, it submitted to the SMV the Report of its Economic Group jointly with the Annual Report and Annual Individual Financial Statements for the 2022 fiscal year (File No. 2023014875), in which the same data on total assets and equity reported on 29 March 2022 with respect to the 2021 fiscal year were noted, data which are contained in File No. 2022012920, as can be seen below:

5. That, likewise, as of the date of the charges, the total amount of assets and equity set forth in the Annual Individual Financial Statements for the 2022 fiscal year submitted in File No. 2023014875 were different

or had varied with respect to the amount indicated in the Economic Group Report submitted together with said financial statements; therefore, given that a change occurred with respect to section “II.a Entities comprising the Economic Group”, the Issuer should have updated the information on its Economic Group and not stated the same data presented at the close of the 2021 fiscal year;

6. That, by means of Official Letter No. 1060-2024-SMV/11.2 of 21 March 2024 (hereinafter, the Charge Letter), the IGCC charged the Issuer with the commission of the infringement set forth in subsection 3.7 of item 3 of Annex I of the Sanctions Regulations, which provides that the following constitutes a minor infringement: “Not submitting to the SMV or, where applicable, to the entity responsible for a centralized trading mechanism, or not keeping updated, the information on its Economic Group, as well as not reporting to the SMV the share transfers that imply a change in the decision-making or control unit, or any modification of the data contained in the Public Registry of the Securities Market, within the period or in the manner established in the regulations on the matter.” (Subrayado agregado);

7. That, as of the date of preparation of the Report, it was observed that the non-compliance indicated in the previous paragraph had been corrected, given that on 08 April 2024 (File No. 2024015489) the Issuer submitted the Economic Group Report updating the concepts of total assets and equity as of 31 December 2023, in accordance with what was reported in the Annual Report and Annual Individual Financial Statements for the 2023 fiscal year;

2.3 Discharges and arguments

8. That, the Issuer has not submitted its discharges despite having been duly notified with the Letter of Charges, via the MVNet System, on 21 March 2024, in accordance with article 24 1 of the Regulation of the MVNet and SMV Virtual System, approved by Superintendente Resolution No. 092-2020- SMV/02, in force at the time of notification (hereinafter, MVNet Regulation)2 ;

9. That, the TUO of the LPAG contains common rules for the actions of the administrative function of the State and regulates all administrative procedures developed in the entities, including special procedures. Likewise, numeral 3) of article 248 of the TUO of the LPAG, indicates the criteria regarding the graduation of the sanction: (a) The illicit benefit resulting from the commission of the infraction, (b) The probability of detection of the infraction, (c) The severity of the damage to the public interest and/or protected legal good, (d) The economic harm caused, (e) Recidivism, for the commission of the same infraction within the term of one (1) year from when the resolution that sanctioned the first infraction became final, (f) The circumstances of the commission of the infraction; and, (g) The

[1] Article 24.- Moment and effectiveness of Notifications Notifications to obligated entities produce legal effects when they are deposited in the electronic domicile of the obligated entity. The term for the exercise of actions by the administered party is counted from the business day following the deposit in the electronic domicile. The means to prove the receipt of information by the obligated entities will be given by the respective records contained in the MVNET log, which will be available to the obligated entities when they require it." (Underline added).

[2] It should be noted that as of 20 March 2024, the new Regulation of the MVNet and SMV Virtual System, approved by SMV Resolution No. 004-2024-SMV/01, is in force, except for the articles on electronic notifications, which entered into force on 30 April 2024.

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existence or not of intentionality in the conduct of the infringer;

10. That, the charge formulated and the criteria regarding the graduation of the sanction have been subject to evaluation in the Report, which has been brought to the attention of the SASCM;

11. That, in observance of the provisions of numeral 5 of article 255 of the TUO of the LPAG, through Letter No. 2945-2024-SMV/11 of 10 July 2024, the Report was sent to the Issuer so that it formulates its arguments within the term of five (05) business days; however, despite being legally notified via the MVNet System, to date, it has not submitted them;

III. ISSUES TO BE DETERMINED

12. That, in the present PAS it corresponds to determine the following:

(i) Whether or not the Issuer incurred in the infraction indicated in the Letter of Charges and Report.

(ii) Whether or not it corresponds to impose a sanction on the Issuer.

IV. ANALYSIS

4.1 Applicable regulations

13. That, article 13 of the Single Ordered Text of the Securities Market Law, Legislative Decree No. 861, approved by Supreme Decree No. 020-2023-EF (hereinafter, TUO of the LMV), establishes that:

"(...) The legal persons registered in the Registry and the issuer of registered securities are obligated to present the information that this law and other general provisions establish, being responsible for the veracity of said information."

14. That, article 7 of the Regulation of Indirect Ownership, Linkage and Economic Groups, approved by SMV Resolution No. 019-2015- SMV-01 and amendments (hereinafter, the Economic Group Regulation), establishes the definition of Economic Group:

"Article 7.- DEFINITION OF ECONOMIC GROUP Economic Group is the set of entities, national or foreign, conformed by at least two entities, when one of them exercises control over the other or others or when the control over the entities corresponds to one or several natural persons acting as a decision unit. Natural persons do not form part of the economic group."

15. That, in relation to the obligation of presenting information of the Economic Group, article 8 of the Economic Group Regulation, provides:

"The issuers of securities registered in the Registry, the legal persons registered in it, and the EAFC are obligated to present to the SMV and when applicable to the entity responsible for a centralized negotiation mechanism in which said securities are registered, the reports on their Economic Group, in accordance with the formats established by the SMV. (Underline added)

16. That, regarding the timeliness of the presentation of information, the second paragraph of article 9 of the Economic Group Regulation,

establishes3 :

“In the event that any change occurs in the reported information on economic group, the information must be updated and submitted at the same opportunity and jointly with the Annual Report of the obligated subject, unless the change qualifies as a material fact or relevant fact, in which case, without prejudice to the respective communication, the obligated subject must update said information within fifteen (15) calendar days thereafter. Said update must be made in accordance with the formats indicated in the first paragraph of the preceding article and, when applicable, must also be sent to the entity responsible for the centralized negotiation mechanism in which the securities are registered.” (Underline added).

17. That, in relation to the form of presentation of the Economic Group information, the provisions of articles 8 and 9 above are pertinent, as well as the provisions of article 10 of the Economic Group Regulation:

“Article 10.- TECHNICAL SPECIFICATIONS FOR SUBMITTING INFORMATION ON ECONOMIC GROUPS The information submitted to the SMV in compliance with the provisions of the preceding articles must observe the formats and technical specifications approved by the Superintendent of the Securities Market.”

18. That, in that sense, the obligated entities must comply with the updating and presentation of information on their economic group through the Economic Group Report, in accordance with the Economic Group Information Formats, approved by Superintendent Resolution No. 083-2016-SMV/02 of 15 June 2016;

19. That, in this regard, section “II.a Entities that make up the Economic Group” of the Economic Group Information Formats contains numeral “vii. Total value of assets and equity: Indicate amount and currency” and it is stated “Note (1) The data on Total Assets and Equity shall refer to the fiscal year immediately preceding the date of presentation of the Economic Groups information”, therefore this information may be updated periodically each year with data on total assets and equity as of the fiscal year immediately preceding the date of presentation;

4.2 Evaluation of the case

20. That, in file No. 2024005999 containing the documentation of this PAS, it is observed that by Memorandum No. 3034-2023-SMV/11.1 of 24 July 2023 (File No. 2023031714), the General

[3] Second paragraph of article 9 of the Regulation of Economic Groups amended by Article 6 of SMV Resolution No. 019-2021-SMV/01, published on 30 October 2021, whose previous text is as follows: “In the event that any change occurs in the reported information on economic group, the information must be updated no later than 31 March of the following year of occurrence, unless the change qualifies as a material fact or relevant fact, in which case, without prejudice to the respective communication as such, the obligated subject must update said information within fifteen (15) calendar days thereafter. Said update must be made in accordance with the formats indicated in the first paragraph of the preceding article and, when applicable, must also be sent to the entity responsible for the centralized negotiation mechanism in which the securities are registered.” (Underline added).

of Supervision of Conduct (hereinafter, IGSC) —an organ of the Superintendency of the Securities Market – SMV which has among its functions and powers the supervision of compliance with the rules applicable to issuers with securities registered in the RPMV—, sent to the IGCC the result of its evaluation, and specifically what refers to the present case;

21. That, it must be borne in mind that the procedures and legal forms with which the IGSC conducts its inspection and/or supervision activity and upon concluding it with a report of indications of infringement, determine that its pronouncement or opinion on a specific supervision matter —which may even contain a decision, such as, for example, the adoption of corrective measures—, is an opinion on the merits of the matter; it being necessary to specify that said opinion and the report of indications of infringement of the IGSC is not binding for the IGCC, as established in the second paragraph of article 9 of the Sanctions Regulation4 5 ;

22. That, in this way, it is established that in the evaluation of the facts related to this PAS, two (2) other organs of the Superintendency of the Securities Market – SMV, functionally independent from each other and from this Office, have intervened and participated prior to the issuance of this resolution; first the IGSC which in due course reported the indications of infringement through the aforementioned memorandum and then the IGCC which, as a result of its evaluation, formulated the Charge Letter and the Report; and at this point of the PAS it corresponds to the Office of the SASCM to issue a pronouncement containing its decision regarding the aforementioned charge, it being necessary to indicate that by the nature thereof, it will be a first-instance administrative decision;

23. That, compliance with the obligation regarding the timely presentation of periodic or occasional information by issuers of securities registered in the RPMV is necessary for the transparency and proper functioning of the securities market, and in that sense the transparency of information is a protected legal interest, it being necessary to point out that the non-observance of said obligation harms or affects it;

24. That, previously, it must be pointed out that at the date of issuance of the Report by the IGCC, the Issuer did not submit the defenses

[4] In article 245 of the TUO of the LPAG, the following are indicated as forms or modes in which the inspection activity could be concluded: 1) Record of conformity of the activity carried out by the administered party; 2) Recommendation of improvements or corrections to the activity carried out by the administered entity; 3) The warning of the existence of non-compliances that are not likely to warrant the determination of administrative responsibilities; 4) The recommendation to initiate a procedure in order to determine the corresponding administrative responsibilities; 5) The adoption of corrective measures and 6) Other forms as established by special laws.

[5] Article 9.- PRELIMINARY INQUIRIES AS A CONSEQUENCE OF SUPERVISION ACTIONS (…) When said bodies conclude that there is sufficient evidence of possible administrative infractions, they refer the corresponding reports to the General Compliance Intendancies, which determine whether or not to initiate an administrative sanctioning procedure. If applicable, the General Compliance Intendancies may conduct additional inspections or investigations of the reported evidence. In the case of possible infractions in the scope of the Regulation of the Financial Participatory Financing Activity and its Managing Companies, the preliminary inquiries are carried out by the General Intendancy of Research and Innovation, a dependency that, if there is sufficient evidence of possible administrative infractions, will determine whether or not to initiate an administrative sanctioning procedure. (…).

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corresponding to the charges formulated, despite being validly notified on 21 March 2024;

25. That, the Issuer did not submit the arguments corresponding to the Report, despite being validly notified, physically, on 24 July 2024;

26. That, in the present case, at the date of imputation of charges, the total amount of assets and equity recorded in the Annual Individual Financial Statements for the 2022 fiscal year submitted in File No. 2023014875 (Annex No. 2), were different or had varied in relation to the amount indicated in the Economic Group Report submitted together with said financial statements; therefore, having occurred a change in relation to the section “II.a Entities that make up the Economic Group” the Issuer should have updated the information on its Economic Group and not record the same amounts presented at the close of the 2021 fiscal year;

27. That, it is also important to highlight that at the date of preparation of the Report the Issuer corrected the non-compliance indicated in the paragraph, given that on 08 April 2024 (File No. 2024015489) the Issuer submitted the Economic Group Report updating the concepts of total amount of assets and equity as of 31 December 2023, in accordance with what was reported in the Annual Report and Annual Individual Financial Statements for the 2023 fiscal year;

28. That, consequently, having been proven the conduct constituting the infraction and determined the administrative responsibility of the Issuer, it is appropriate to analyze the proposed sanction in accordance with the provisions of the principle of reasonableness and the sanction criteria, considering that the Issuer has corrected the infraction after the charge letter; which will be evaluated in the section on determination of the sanction;

V. DETERMINATION OF THE SANCTION

29. That, having determined the existence of administrative responsibility on the part of the Issuer, for the commission of one (1) infraction typified in subsection 3.7 of numeral 3 of Annex I of the Sanctions Regulation, which states that it constitutes a minor infraction:

“Not submitting to the SMV or, when applicable, to the entity responsible for a centralized negotiation mechanism, or not keeping updated, the information on its Economic Group, as well as not informing the SMV, the share transfers that imply a change in the decision or control unit, or any modification of the data in the Public Registry of the Securities Market, within the period or form established in the relevant regulations.” (Underline added)

30. That, according to article 35 of the Sanctions Regulation, said infraction is punishable with a warning or a fine of not less than one (01) UIT and up to twenty-five (25) UIT;

31. That, in that sense, it is appropriate to determine the sanction to be imposed on the Issuer considering the sanction criteria established in article 344 of the TUO of the LMV, numeral 3) of article 248 of the TUO of the LPAG and the provisions of article 25 of the Sanctions Regulation, which develop the criteria for grading the sanction, these being: (i) the sanction antecedents of the issuer, (ii) recidivism, (iii) the circumstances of the commission of the infraction, (iv) the harm

economic caused and its repercussion in the market, (v) the illicit benefit resulting from the commission of the infraction, (vi) the probability of detection of the infraction, (vii) the severity of the damage to the public interest and/or protected legal interest and (viii) the existence or not of intentionality in the conduct of the infringer;

32. That, in relation to the severity of the damage to the public interest and/or protected legal right, it is relevant to note that in relation to the severity of the damage to the public interest and/or protected legal right, it must be indicated that the timely submission of the Economic Group Report by the issuers of securities registered in the Public Registry of the Securities Market constitutes a fundamental obligation in the transparency of the securities market, so that market participants can make their investment decisions adequately informed. Therefore, although a severity of damage to the public interest is not evident, the breach of the obligation to inform the market within the deadlines by the issuers affects market transparency, which is considered a protected legal right;

33. That, regarding the sanction history, literal a) of article 25 of the Sanctions Regulation establishes that these are the final sanctions imposed by the Superintendency of the Securities Market – SMV within a period of four (4) years prior to the commission of the infraction to be sanctioned; notwithstanding this, it is clarified that the commission of the same infraction in the year prior to the infraction to be sanctioned is not considered as a history. On this matter, from the verification carried out in the SMV Sanctions System, it has been determined that the Issuer has a sanction history, having been sanctioned for a different type of infraction, through five (05) resolutions, as detailed in the Report;

34. That, regarding the recidivism of the offender, literal b) of article 25 of the Sanctions Regulation establishes that the final sanction imposed by the SMV within a period of one (1) year prior to the commission of the infraction to be sanctioned is taken into account. In this regard, it has been verified that there is no recidivism on the part of the Issuer;

35. That, in relation to the circumstances of the commission of the infraction, it has been verified that the Issuer had not updated the information about its economic group since 29 March 2022, registering as of 31 December 2021 the concepts of total amount of assets and equity of the companies that make up its economic group, when it should have been updated as of 31 December 2022. However, it should be noted that, as of the date of preparation of this report, this General Intendancy has verified that the Issuer on 08 April 2024 (File No. 2024015489) has corrected the infraction by updating the concepts of total amount of assets and equity as of 31 December 2023, in accordance with what was reported in the Annual Report and Annual Individual Financial Statements for the 2023 fiscal year;

36. That, regarding the economic harm and its impact on the market, it has not been evidenced that the breach has produced a quantifiable harm, understood as an economic damage caused to one or several investors;

37. That, in relation to the illicit benefit resulting from the commission of the infraction, it can be stated that there are not sufficient elements to indicate that the Issuer obtained an illegal benefit as a consequence of the commission of the infraction under evaluation in this PAS;

38. That, regarding the probability of detection of the

infraction committed, it must be noted that the probability is high, because this class of breaches are corroborated by the SMV itself through periodic control actions;

39. That, in relation to the existence or not of intentionality in the conduct of the offender, it can be stated that there are not sufficient elements to indicate that the Issuer acted with intent in the commission of the infractions, so this criterion would not have been configured. However, it is necessary to indicate that although there are no indications to state that the Issuer acted with intentionality, it can be affirmed that the conduct of the Issuer was negligent, by not having acted with the required diligence before obligations already known by the Issuer;

40. That, in addition to the foregoing, it should be indicated that in this PAS it has been verified that no exemptions or mitigating circumstances of responsibility established in article 257 of the TUO of the LPAG6 have been presented, in accordance with articles 267 and 278 of the Sanctions Regulation;

[6] “Article 257.- Exemptions and mitigating circumstances of responsibility for infractions 1.- The following constitute conditions exempting from responsibility for infractions: a) Fortuitous event or duly proven force majeure. b) Acting in compliance with a legal duty or the legitimate exercise of the right of defense. c) Mental incapacity duly proven by the competent authority, provided that it affects the aptitude to understand the infraction. d) The mandatory order of a competent authority, issued in the exercise of its functions. e) The error induced by the Administration or by a confusing or illegal administrative provision. f) The voluntary correction by the possible sanctioned party of the act or omission imputed as constituting an administrative infraction, prior to the notification of the imputation of charges referred to in subsection 3) of article 235. 2.- The following constitute conditions mitigating responsibility for infractions: a) If once an administrative sanctioning procedure has begun, the offender acknowledges his responsibility expressly and in writing. In cases where the applicable sanction is a fine, it is reduced to an amount not less than half of its amount. b) Others established by special norm.”

[7] “Article 26.- MITIGATING CONDITIONS OF LIABILITY FOR INFRACTIONS The following constitute mitigating conditions of liability for infractions: a) Express written acknowledgment of responsibility by the offender, once the administrative sanctioning procedure has been initiated. When the applicable sanction is a fine, it is reduced, taking into account the following: (…) 3. If the acknowledgment is submitted after the expiration of the period granted to submit arguments to the instruction report and up to before the issuance of the sanction resolution, the reduction amount shall be ten percent (10%)”.

[8] “Article 27.- EXEMPTING CONDITIONS OF LIABILITY FOR INFRACTIONS The following constitute exempting conditions of liability for infractions: a) Fortuitous event, force majeure or another exceptional situation that, in the opinion of the SMV, is comparable to a duly proven fortuitous event or force majeure. b) Acting in compliance with a legal duty or the legitimate exercise of a right of defense. c) Mental incapacity duly proven by the competent authority, provided that it affects the ability to understand the infraction. d) The mandatory order of a competent authority, issued in the exercise of its functions. e) The error induced by the Administration or by a confusing or illegal administrative provision. f) The voluntary correction by the possible sanctioned party of the act or omission imputed as constituting an administrative infraction, prior to the notification of the imputation of charges referred to in subsection 3) of article 253 of the LPAG and provided that no communication demanding compliance with the obligation has been sent”.

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41. That, in this sense, in application of the Sanction Criteria, it is observed that the infraction committed has not caused a concrete harm to investors, the Issuer has not obtained a benefit from its illegal conduct, nor has it been proven that it acted with intent; likewise, although the Issuer has a sanction record, it is important to take into account the action of the administered party to correct the imputed conduct, complying on 08 April 2024 (File No. 2024015489) with updating the information on its Economic Group with the concepts of total amount of assets and equity as of 31 December 2023;

42. That, taking into account the criteria detailed previously, this Deputy Superintendency considers that the Issuer must be imposed with one (1) warning for the non-compliance incurred, in accordance with article 35 of the Sanction Regulation;

43. That, the Issuer is reminded that final sanction resolutions imposed by competent authorities must be reported as a material event, within the framework of the provisions of article 5 of the Material Events Regulation, and;

In accordance with the provisions of numerals 13 and 36 of article 43 of the Regulation of Organization and Functions of the Superintendency of the Securities Market – SMV, approved by Supreme Decree No. 216-2011-EF;

RESOLVES:

Article 1.- Declare that Fabrica Peruana Eternit S.A. has incurred in one (1) infraction of a minor nature, typified in subsection 3.7 of numeral 3 of Annex I of the Sanction Regulation, approved by SMV Resolution No. 035-2018- SMV/01, for not having updated the information on its Economic Group within the period and in the manner established in the norm, as of the date of imputation of charges.

Article 2.- Sanction Fabrica Peruana Eternit S.A. with one (1) warning for not keeping updated the information on its Economic Group within the period and in the manner established in the norm, as provided in article 1 of this Resolution.

Article 3.- This Resolution does not exhaust the administrative remedy, and it may be challenged before this Deputy Superintendency of Supervision of Market Conducts by filing motions for reconsideration or appeal, an administrative remedy recognized in article 218 of the Single Ordered Text of the General Administrative Procedure Law – Law No. 27444, approved by Supreme Decree No. 004-2019-JUS, within a period of fifteen (15) business days, counted from the day following its notification.

Article 4.- In the event that this Resolution is not subject to challenge, it must be published on the “Institutional Page of the SMV on the Single Digital Platform of the Peruvian State for Citizen Orientation (www.gob.pe/smv)”, in observance of the provisions of numeral 1 of article 7 of the “Policy on dissemination of regulatory projects, general legal norms, early agenda and other administrative acts of the SMV”, approved by SMV Resolution No. 014-2014-SMV/01, and by the provisions of the last paragraph of article 14 of the Sanction Regulation, approved by SMV Resolution No. 035-2018-SMV/01.

Article 5.- Transcribe this Resolution to Fabrica Peruana Eternit S.A.

Carlos Rivero Zevallos
Deputy Superintendent
Deputy Superintendency of Supervision of Market Conducts