Superintendent Resolution No. 010-2025-SMV/02 — SMV — PE

PERU Ministry of Economy and Finance

1 "ANNEX X
Of the Infractions of the Intermediation Agent, of the Representatives, of the Internal Control Responsible Officer and of any person directly or indirectly related to the Intermediation Agent Infractions of intermediation agents, of representatives, of the internal control responsible officer and of any person directly or indirectly related to the intermediation agent, as applicable:
1.- Very Serious
(...)
1.7 Maintain directly or indirectly persons who have some legal or regulatory impediment, fail to observe
that they comply with the requirements established in the current regulations, or allow or facilitate to them the development of activities related to those of the intermediation agent."
2 "ANNEX X
Of the Infractions of the Intermediation Agent, of the Representatives, of the responsible for the control system, and of any person who provides a service related to the functions and services provided by the Intermediation Agent Infractions of intermediation agents, of representatives, responsible for the internal control system and of any person who provides a service related to the functions and services provided by the intermediation agent, as applicable:
1.- Very Serious
(...)
1.4 Maintain directly or indirectly persons who have some legal or regulatory impediment, fail to observe
that they comply with the requirements established in the current regulations, or allow or facilitate to them the development of activities related to those of the intermediation agent."

PERU Ministry of Economy and Finance

SMV
Securities Market
Superintendency
"Decade of Equal Opportunities for Women and Men" "Year of recovery and consolidation of the Peruvian economy" Electronically signed document in the framework of Law No. 27269, Law of Digital Signatures and Certificates, its regulations and amendments. The integrity of the document and the authorship of the signature(s) can be verified at https://apps.firmaperu.gob.pe/web/validador.xhtml That, in writing presented on December 5, 2022, CARTISA filed an appeal against the SANCTION RESOLUTION; That, by Report No. 325-2024-SMV/06 (hereinafter, the REPORT), the Legal Advisory Office issued an opinion on the appeal filed by CARTISA; That, by Office No. 1050-2024-SMV/14, the REPORT was sent to CARTISA and, on March 21, 2024, CARTISA presented its written arguments on the REPORT and requested an oral report; That, on April 4, 2024, the oral report was held by CARTISA, and additional written arguments were presented and, on April 10, 2024, CARTISA presented its final written arguments;
I. ARGUMENTS OF THE APPEAL, ARGUMENTS AND ORAL REPORT
FORMULATED BY CARTISA
That, below, the arguments contained in the appeal filed by CARTISA are briefly exposed, its oral report and its arguments:
1.1. On the classification of repo operations
(i) Regarding the repo operation carried out on December 27, 2018, CARTISA maintains that it is atypical to impute to it not having verified that its representative had authorization to carry out repo operations debt instruments, since these operations are financial instruments distinct from debt instruments or equity, according to the definition of financial instruments established in subsection k) of
Article 2 of the Regulation of Intermediation Agents (hereinafter, RAI)
approved by SMV Resolution No. 034-2015-SMV/01, which is cited below:
"Article 2.- Terms and Definitions
For the purposes of this Regulation, the terms and definitions that are indicated have the following scope:
(...) k) Financial Instruments: For the purposes of this regulation, the vocabulary financial instruments includes securities and other instruments representing the liability or equity of an entity, financial derivatives, repo operations or other financial operations; (...)" (ii) In this sense, CARTISA states that the SANCTION RESOLUTION gave it relevance to this definition by maintaining that the understanding of repo operations cannot be limited under this definition or independize them as such, disregarding the nature and other concepts under which repo operations are defined in different regulatory bodies; Furthermore, CARTISA argues that the

PERU Ministry of Economy and Finance

SMV
Securities Market
Superintendency
"Decade of Equal Opportunities for Women and Men" "Year of recovery and consolidation of the Peruvian economy" Electronically signed document in the framework of Law No. 27269, Law of Digital Signatures and Certificates, its regulations and amendments. The integrity of the document and the authorship of the signature(s) can be verified at https://apps.firmaperu.gob.pe/web/validador.xhtml SANCTION RESOLUTION has not taken into consideration that the incorporation of repo operations in the definition of subsection k) of Article 2 of the RAI, is due to what is provided in the Repo Operations Law, Law No. 30052 (hereinafter, REPO OPERATIONS LAW). Furthermore, CARTISA mentions the following articles of the aforementioned law that establish the definition of repo operations:
"Title II
The Operations
Article 4. Operations with Commitment to Repurchase
By the "Sale with Commitment to Repurchase" operation, the seller transfers to the buyer the ownership of certain "Securities" in exchange for a sum of money (initial amount) and undertakes, in that same act, to repurchase the same "Securities" or others of the same species and characteristics, at a later date, against the payment of a price agreed (final amount).
Article 5. Simultaneous Sale and Purchase Operations of
Securities
By the "Simultaneous Sale and Purchase of Securities" operation, it is agreed, at the same time, two buy-sell operations of "Securities" of opposite sense. The seller transfers to the buyer the ownership of certain "Securities" in exchange for a sum of money (initial amount) and undertakes, in a simultaneous act but different from the first, to buy the same "Securities" or others of the same species and characteristics, at a later date, against the payment of a sum of money (final amount)." (iii) In this framework, according to CARTISA, the inclusion of repo operations as a financial instrument distinct from instruments representing liability or equity, is the result of the adjustment that the aforementioned law orders the Securities Market Superintendency (hereinafter, the SMV) in its final complementary provision 3 ; (iv) Furthermore, CARTISA argues that it is unusual for a law issued expressly to regulate repo operations to include in its content the repo operation itself as a financial instrument. Additionally, that the compliance with the adjustment ordered in said law would be evidenced in the modification made by SMV Resolution No. 008-2015-SMV/01, to Article 34 4 of the Regulation of Operations in the Lima Stock Exchange Wheel, approved by CONASEV Resolution No. 021- 99-EF/94.10 (hereinafter, OPERATIONS REGULATION) to incorporate the definition of repo operations established in the law 5 ; (v) In addition to the above, it states that to carry out repo operations it is sufficient to have the status of representative and the same applies to the other activities to which the operator-type representative is authorized; which, in its opinion, would have been corroborated in the REPORT by the Legal Advisory Office;
1.2. On CARTISA's participation in the trading regime with treasury bills
(i) Regarding operations with public treasury bills, CARTISA states that the SANCTION RESOLUTION recognizes in its considerations 67 6 and 70 7

4 "ARTICLE 34th BURSARILE REPO OPERATION OF SECURITIES The Bursatile Repo Operation of Securities is defined as a Sale with Commitment to Repurchase Operation, according to what is established in the Repo Operations Law, Law No. 30052. The Bursatile Repo Operation of Securities is that which comprises, in a single act, a sale of securities, to be settled within the term established for spot or forward operations, and another simultaneous purchase of securities, to be settled within the term agreed for the same quantity and species of securities and at a determined price. The selling company in the first sale is called "reportado", while the buying company, "reportante". It is a characteristic of these operations that the securities that are transferred in ownership remain as margin guarantee for the reportante for the fulfillment of the settlement of the last forward sale in the percentage established by the Board of Directors through complementary provisions. The securities will be transferred in ownership to the reportante upon settling the sale within the term established for spot operations. The term of this operation cannot exceed 360 calendar days. The Board of Directors through Complementary Provisions will determine the cases in which a repo operation entails prior consent regarding subsequent transfers of the position. Repo operations in which the reporting company acts on behalf of an institutional investor may be subject to particular conditions regarding the securities subject to the operations. The operations subject to said special conditions will be called extended repo operations. The Board of Directors will determine through Complementary Provisions the conditions that will be applicable to said operations, in accordance with what is provided in this regulation." 5 "Repo Operations Law, Law No. 30052
Article 1. Purpose of the Law
This Law regulates the legal regime applicable to financial repo operations called "Sale with Commitment to Repurchase", "Simultaneous Sale and Purchase of Securities" and "Temporary Transfer of Securities", hereinafter "Operation" or "Operations", which are subject to the requirements provided in this Law, excluding those that do not meet the mentioned requirements. The "Operations" imply the temporary transfer of ownership, both of the "Securities" subject to the operation, as well as the sum of money or "Securities" granted in exchange (agreed initial amount), reciprocally and simultaneously, as applicable. Likewise, the "Operations" imply consequent obligation to return the ownership of said "Securities" to their original holder, or the obligation to reacquire the ownership by their original holder, according to the type of "Operation" in question; in exchange for the reciprocal and simultaneous transfer of a determined or determinable sum of money based on a market variable that may include an interest, premium or other, or in exchange for "Securities" (agreed final amount)." 6 "67. Likewise, it must be considered that article 194, subsection e) establishes: i) an initial subscription of securities, for which no authorization as a representative is required and is related to a faculty granted by law that have brokerage companies as authorized entities; and ii) a subsequent placement of the same, from which it is derived that if such placement is carried out through the BVL trading system, it must be carried out by a person authorized as a representative according to the instrument that operates. In this sense, it must be indicated that the temporary subscription of securities does not imply that the regulatory framework applicable to its subsequent placement is not observed." 7 "70. With regard to what was stated, it must be indicated that unlike the temporary subscription or acquisition of an issuance by an intermediary, which can be channeled through a person duly empowered to act on behalf of the company before an issuer and who is not necessarily a representative, the carrying out of operations in the secondary market, among others, implies investment execution decisions on behalf of clients of the brokerage company in which the duty of care must be applied. In this sense, the regulation has provided that the

PERU Ministry of Economy and Finance

SMV
Securities Market
Superintendency
"Decade of Equal Opportunities for Women and Men" "Year of recovery and consolidation of the Peruvian economy" Electronically signed document in the framework of Law No. 27269, Law of Digital Signatures and Certificates, its regulations and amendments. The integrity of the document and the authorship of the signature(s) can be verified at https://apps.firmaperu.gob.pe/web/validador.xhtml that for the initial subscription (also considered temporary acquisition) it is not required that the intervening party, on behalf of the brokerage company (hereinafter, REPRESENTATIVE OF THE BSB) be empowered for such effect; (ii) However, in said considerations the SANCTION RESOLUTION maintains that for secondary trading it is necessary that an AUTHORIZED REPRESENTATIVE OF THE BSB intervene to trade with debt instruments. This requirement, according to CARTISA, is not included in the regulation and is carried out with the purpose of including the operator-type representative in the trading of debt instruments for which he was not authorized; (iii) In the same sense, in consideration 71 of the SANCTION RESOLUTION, it is indicated that since the secondary trading of treasury bills is carried out through the trading systems of the Lima Stock Exchange (hereinafter, BVL), this does not exempt that the regulations of the securities market must be observed and, therefore, the REPRESENTATIVE OF THE BSB must be authorized to trade with debt instruments:
"71. For its part, regarding the references made by CARTISA SAB with respect to the Regulation of Treasury Bills, the Regulation of the Market Maker Program for Public Treasury Bills and Director Resolution No. 043-2013.EF/52.01; it should be noted that it is the regulatory framework established for the trading of the treasury bills of the operations subject to charges. This regulation has established that these securities be traded through the BVL trading systems; however, this does not imply or does not exempt that when operations with treasury bills are channeled to these trading systems, the intermediaries cease to observe the own regulation that governs their action in the securities market and which is under the scope of supervision of the SMV;" (Highlighted by CARTISA) (iv) Additionally, CARTISA maintains that, in consideration 72 of the SANCTION RESOLUTION it is specified that numeral 1.17 of the New Regulation of Treasury Bills, approved by Supreme Decree No. 309- 2016-EF (hereinafter, NEW REGULATION OF TREASURY BILLS), suggests that the REPRESENTATIVE OF THE BSB must have the authorization to operate with debt instruments, since the SMV must safeguard the compliance with the regulations that regulate the functioning of the centralized trading mechanisms, as well as the regulations of general character approved by the SMV applicable to them:
"72. With respect to this, the new Regulation of Treasury Bills approved by article 3 of Supreme Decree No. 309-2016-EF in force since November 16, 2016* (NEW REGULATION OF TREASURY BILLS), states in its article 1, numeral 1.17, that the SMV is the

channeling of such decisions as part of the intermediation process through an authorized person with specialized knowledge on the types of securities on which it advises or operates for investors; that is, a Representative, with the purpose of not affecting the legal good of investor protection; therefore, what was stated in the preceding considerations does not imply a contradictory reasoning as stated by CARTISA SAB in its written arguments;"

PERU Ministry of Economy and Finance

SMV
Securities Market
Superintendency
"Decade of Equal Opportunities for Women and Men" "Year of recovery and consolidation of the Peruvian economy" Electronically signed document in the framework of Law No. 27269, Law of Digital Signatures and Certificates, its regulations and amendments. The integrity of the document and the authorship of the signature(s) can be verified at https://apps.firmaperu.gob.pe/web/validador.xhtml State body responsible, among others, for the supervision entities that participate in the centralized trading mechanisms where the treasury bills are traded, as well as for requesting information in order to safeguard the compliance with the regulations that regulate the functioning of such centralized trading mechanisms, as well as the regulations of general character approved by the SMV applicable to them; *In its written arguments of November 11, 2011, CARTISA refers to the Regulation of Treasury Bills that was approved by Supreme Decree No. 051-2013-EF. This norm was repealed by article 4 of Supreme Decree No. 309-2016-EF." (Highlighted by CARTISA) (v) CARTISA argues that what is stated in the preceding considerations of the SANCTION RESOLUTION has no basis, according to what is provided in the NEW REGULATION OF TREASURY BILLS, and cites numeral 1.17 of section 1 of this norm, which grants the SMV the faculty to request information:
"1. TERMS AND CONDITIONS OF SECURITIES AND
OPERATIONS
1.1 Strategic framework of action
The Republic of Peru, within the framework of a global management of assets and financial liabilities and its role as promoter of the development of the public debt securities market, will carry out issuances of Treasury Bills in the primary market, as well as repurchases and resales of these same securities in the secondary market, with the purpose of achieving its strategic goals and objectives approved, under the conditions established in this Regulation. (...)
1.17 Supervisory Entity
The Securities Market Superintendency (SMV) establishes the requirements that organizers of the centralized mechanisms in which public debt securities are traded must comply with, authorizes their operation, approves their internal regulations and supervises the operations carried out in them. The SMV is the State body responsible for the supervision of i) the centralized trading mechanisms authorized in which the auctions of letters convened by the Responsible Unit are held or the trading of these public debt securities takes place, ii) the entities that conduct such mechanisms, iii) the entity that administers the electronic system of representation of public debt securities by book entry, iv) eligible entities and other entities that participate in the centralized trading mechanisms. For purposes of control and supervision, the SMV may request information from the entities mentioned above in order to safeguard the compliance with the regulations that regulate the functioning of such mechanisms centralized trading, as well as the regulations of general character approved by the SMV applicable to them." (Highlighted by CARTISA)

PERU Ministry of Economy and Finance

SMV
Superintendencia del Mercado de Valores
“Decenio de la Igualdad de Oportunidades para Mujeres y Hombres” "Año de la recuperación y consolidación de la economía peruana" Documento electrónico firmado digitalmente en el marco de la Ley N° 27269, Ley de Firmas y Certificados Digitales, su Reglamento y modificatorias. La integridad del documento y la autoría de la(s) firma(s) pueden ser verificadas en https://apps.firmaperu.gob.pe/web/validador.xhtml

(vi) In this sense, CARTISA affirms that the SMV is not empowered to require, those who intervene in the secondary trading of treasury bills through centralized trading mechanisms, to hold authorization to trade debt instruments, as provided in letter i) of section 4 of the NEW TREASURY BILLS REGULATION:

«4. CENTRALIZED TRADING MECHANISMS FOR PUBLIC DEBT The Responsible Unit, through a Directorial Resolution, will authorize the secondary trading of bills in centralized trading mechanisms, whose operation shall adhere to the provisions issued by the SMV, which must meet at least the following requirements:
(…) i) Allow any market participant to freely contract access to the services offered by the centralized trading mechanisms.
(…)»
(Highlighted by CARTISA)

(vii) According to said text, CARTISA affirms that the SMV could not require that, to secondary trade treasury bills initially subscribed, the intervening party on its behalf must hold authorization to operate with debt instruments, since the SMV must allow any market participant to contract in the centralized trading mechanisms;

1.3. On the atypical nature of the charges

(i) In line with what was stated in the previous sections, CARTISA maintains that it has not carried out purchase and sale operations with debt instruments, since it has carried out report operations which are a different financial instrument, as established in letter k) of article 2 of the RAI;

(ii) In the same sense, CARTISA affirms that it has not allowed its representative to intervene in operations with treasury bills without being authorized, since authorization is not required to intervene in the subscription (purchase) of the same, and for the secondary trading of the securities, since the SMV is obliged to allow any market participant to freely contract access to the services offered by the centralized trading mechanisms;

(iii) In light of the above, according to CARTISA, the atypical nature of the charges imputed presents itself in the following forms:

a. There is no norm that restricts the participation of the REPRESENTATIVE OF THE SAB in a report operation as this is a financial instrument different from debt or participation instruments, nor in the primary and secondary trading of treasury bills: atypicality due to not being previously and taxatively provided as sanctionable conduct.

PERÚ Ministerio de Economía y Finanzas

b. By considering the imputed conduct as included in the sanctionable scenario provided for in Annex X, numeral 1, clause 1.4 of the NEW SANCTIONS REGULATION: “(…) by failing to observe that its representative meets the requirements established in the current regulations (…)”: atypicality due to extensive or analogical interpretation.

(iv) For CARTISA, the two forms mentioned above are a contravention of the Principle of Typicity and, therefore, produce the nullity of the SANCTION RESOLUTION, according to numeral 4 89 of article 248 of the Single Text of the General Administrative Procedure Law N° 27444, approved by Supreme Decree N° 004-2019-JUS (hereinafter, TUO OF THE LPAG);

(v) Likewise, to support the atypical nature incurred by the Superintendent Adjunct of Prudential Supervision (SASP), CARTISA cites the ruling of the Constitutional Tribunal in Case N° 1873-2009-PA/TC-Lima, which establishes the following:

«b) The principle of typicity
40. This principle allows that sanctionable conduct be duly delimited so that general or indeterminate clauses are proscribed, that is, those whose content is not express and knowable, but must be “filled” or concretized through arguments used for such effect, but for that very reason, sometimes subsequent to the act that is intended to be sanctioned.
41. Then, it turns out that the so-called “knowledge” of the prohibited conduct is no longer such, since the administrative body can go on filling the content of such indeterminate legal concepts according to the fact it intends to sanction, leaving thus the act of “completing” the content of such acts to the discretion or arbitrariness of the administrative entity.» (Highlighted by CARTISA)

1.4. On the typical acts of ideological falsity

(i) CARTISA maintains that, according to the interpretation of the charges imputed during the procedure, in the SANCTION RESOLUTION there would have been incurred within the criminal type of ideological falsity;

8 «Article 248.- Principles of the administrative sanctioning power The sanctioning power of all entities is additionally governed by the following special principles:
(…)
4. Typicity.- Only administrative sanctionable conduct are the infractions expressly provided for in norms with the rank of law by typifying them as such, without admitting extensive interpretation or analogy. The regulatory development provisions may specify or grade those directed to identify the conduct or determine sanctions, without constituting new sanctionable conduct from those legally provided, except in cases where the law or Legislative Decree allows typifying infractions by regulatory norm.
Through the typification of infractions, one cannot impose on the regulated the fulfillment of obligations that are not previously provided for in a legal or regulatory norm, as appropriate.
In the configuration of sanctioning regimes, the typification of infractions with the same factual scenario and identical basis with respect to those crimes or offenses already established in criminal laws or with respect to those infractions already typified in other administrative sanctioning norms is avoided.»

9 Said numeral is included in numeral 4 of article 230 of the LPAG.

PERÚ Ministerio de Economía y Finanzas

(ii) Regarding this, CARTISA warns that in section III, titled Infringement, of Office N° 2162-2022-SMV/10.3, the General Superintendent of Prudential Compliance (IGCP) held the following:

«Consequently, for the operations included between July 17 and November 27, 2018, (…) the qualified infringement considered very serious would be applicable to CARTISA SAB, according to Annex X, numeral 1, clause 1.4 of the NEW SANCTIONS REGULATION, which typifies as a very serious infringement: “Maintain directly or indirectly persons who have some legal or regulatory impediment, fail to observe that these meet the requirements established in the current regulations, or allow or facilitate to these the development of activities related to those of the intermediation agent.» (Highlighted by CARTISA)

(iii) In the same sense, in the SANCTION RESOLUTION, this type of infringement is reiterated in consideration 88 which is cited below:

«88. (…) constitutes infringement: “Maintain directly or indirectly persons who have some legal or regulatory impediment, fail to observe that these meet the requirements established in the current regulations, or allow or facilitate to these the development of activities related to those of the intermediation agent;» (Highlighted by CARTISA)

(iv) However, in consideration 102 of the SANCTION RESOLUTION, the act constitutive of infringement is described as follows:

«102. However, CARTISA SAB has not observed that MR. BALBUENA meets the requirements established in the regulations to carry out operations, in this case having the authorization to operate with financial debt instruments, since he only had authorization to operate with participation financial instruments, as established in the applicable regulations, between July 17 and November 27, 2018 and December 27, 2018, thus failing to comply with article 44° of the RAI. It should be noted that during the 163 days of the stated period, a total of 14 operations were carried out;» (Highlighted by CARTISA)

(v) The term “carry out operations” would constitute, according to CARTISA, an inference that for all practical effects is reproduced in article one of the SANCTION RESOLUTION:

«Article 1°.- Declare that Sociedad Agente de Bolsa CARTISA Perú S.A., has incurred a very serious nature infringement typified in Annex X, numeral 1, clause 1.7 of the Sanctions Regulation, approved by CONASEV Resolution N° 055-2001-EF/94.10 and in Annex X, numeral 1, clause 1.4 of the Sanctions Regulation, approved by SMV Resolution N° 035-2018-SMV/01; for failing to observe that its Representative meets the requirements established in the current regulations for the carrying out of operations.» (Highlighted by CARTISA)

(vi) In view of this, CARTISA maintains that:

PERÚ Ministerio de Economía y Finanzas

«3.5. The sequence of consideration 102 of the APPEALED, makes it evident that the sanctioning body perceives the need to provide the sanctionable scenario with a tangible effect that supports the imposition of the sanction, and persuades the accused, as well as the hierarchical superior of the typicity and gravity of the alleged infringing conduct, with which it produces effects in the legal traffic of the APPEALED.»

(vii) Finally, in order to reinforce its argument, CARTISA cites the summary of Casación N° 341-2021/ANCASH:

«Title. Crime of ideological falsity. Potential damage Summary. 1. Ideological falsity occurs when mendacious declarations are recorded or made to appear in a legal act, even if externally true. The document is not false in its conditions of existence, but the ideas that are intended to be affirmed as true in it are false. 2. The crime of documentary falsity is a crime of danger, not of injury, which is consummated when the alteration of the truth is produced and does not require that this alteration has produced its effects in the legal traffic, being sufficient with the endangerment due to the variation produced in the documented reality. 3. The criminal type of ideological falsity is a common and dominance crime, therefore, it does not require a special condition of the active subject nor the violation of a positive institutional duty. The case is different if the document whose falsity is affirmed has the public character since it was carried out within the framework of a specific procedure within a public body and for public purposes.» (Highlighted by CARTISA)

1.5. On the nullity of the sanctioning procedure

(i) In its final written allegations, CARTISA requests the nullity of the entire process followed against it, since the REPORT that would support the eventual sanction was signed by a civil servant who does not meet the requirements for the position, established in the Classifier Manual of Positions, approved by Superintendent Resolution N°104-2023-SMV/02 and formalized and compiled by Superintendent Resolution N°113-2023-SMV/02, which establishes as “Structural position requirement” b) Academic instruction level: Professional degree in law, with membership and licensed to practice;

(ii) Likewise, it attaches Office N°123-2024-CAL/SG, according to which, the civil servant who signed the REPORT was inactive since August 01, 2019, due to unpaid ordinary fees; and a printout from the portal of the Lima Bar Association “Search for Members”, taken at 9:24 am on April 4, 2024, where it is recorded that the aforementioned civil servant was in the condition of Inactive on that date;

(iii) Therefore, on March 12, 2024, the date on which the REPORT was issued, the civil servant did not meet the requirement established in the Classifier Manual of Positions to be licensed to practice, so

PERÚ Ministerio de Economía y Finanzas

that such non-observance results in the nullity of everything done against CARTISA;

II. EVALUATION OF THE APPEAL, ALLEGATIONS AND ORAL REPORT FORMULATED BY CARTISA

2.1. Formal requirements of the appeal

That, in accordance with what is provided by numeral 206.1 of article 206 of the General Administrative Procedure Law, Law N° 27444 (hereinafter, LPAG), against an «act that is supposed to violate, disregard or harm a right or legitimate interest, its contradiction in the administrative channel is proceeded through the administrative resources indicated in the following article, initiating the corresponding recursive procedure»;

That, regarding this, article 207 of the LPAG provides that administrative resources are the reconsideration resource and the appeal resource; and that their interposition must be raised within the peremptory term of fifteen (15) days;

That, in addition to the above, articles 113 and 211 of the LPAG provide the requirements that the appeal resource must meet;

That, now well, from the evaluation carried out based on said legal framework, it has been verified that the appeal resource filed by CARTISA meets the requirements established in the LPAG, since it was filed within the term of fifteen (15) business days, is founded on issues of pure law and meets the other requirements established by the regulations, so it corresponds to issue an opinion on the grounds of this;

2.2. Evaluation of the arguments of the appeal, allegations and oral report

a. On the classification of report operations

That, with respect to the classification of report operations as financial instruments independent of the financial instruments representing the liability or equity, it is necessary to review the legal provisions and applicable regulation, in order to carry out an integral analysis;

That, in effect, letter q) of article 194 10 of the Securities Market Law (hereinafter, LMV), Legislative Decree N° 861, establishes that report operations are a type of operation that stock broker societies can carry out:

«Article 194.- Operations. - Stock broker societies are empowered to carry out the following operations:
(…)

10 Said article is included in article 190 of the Single Text of the Securities Market Law, approved by Supreme Decree N° 020-2023-EF, hereinafter TUO OF THE LMV.

PERÚ Ministerio de Economía y Finanzas

q) Carry out value loans and report operations in accordance with the general character provisions issued by CONASEV; (…)» (Highlighted by us)

That, in the same sense, letter b) of article 40 of the RAI makes direct reference to article 194 of the LMV to establish those operations that operator-type representatives can carry out, including among these the report operations:

«Article 40.- Types of Representatives
For the exercise of their functions, the Agent may have the following types of Representatives, who assume joint liability, along with the Agent, for the fulfillment of their functions:
(…) b) Operator: Natural person who can carry out the operations contemplated in clauses a), p), q) and s) of article 194 of the Law for the case of Broker Societies, or in clauses c) and d) of article 207 of the Law for the case of Intermediary Societies. (…)» (Highlighted by us)

That, in such sense, from the concordant reading of the aforementioned articles 40 of the RAI and 194 of the LMV, it is evident that report operations are considered as one of the operations that an operator-type representative can carry out;

That, pursuant to this, letter d) of article 41 of the RAI establishes three types of financial instruments that operator-type representatives can operate: a) participation; b) debt; and, c) derivatives; being important to emphasize that, for this, they must previously request the respective authorization:

«Article 41.- Authorization of Representatives The Authorization of Representatives is of automatic approval with the presentation to the SMV of the following documents:
(…) d) Valid Certification of Knowledge, issued by the certifying entity designated to accredit the knowledge, as established in annex F. This certificate is not a requirement when it comes to the authorization of the Investment Officer; The Authorization of the Advisory Representative and the Operator is granted according to the type of financial instrument that advises or operates, which can be Participation Financial Instruments, of debt or of derivatives. (…)» (Highlighted by us)

PERÚ Ministerio de Economía y Finanzas

That, in the same sense, letter e) of Annex F of the RAI establishes as a requirement for the operator-type representative, accredit the knowledge certification regarding those three instruments:

«ANNEX F
“NORMS FOR THE CERTIFICATION OF KNOWLEDGE OF THE PROFESSIONALS OF THE SECURITIES MARKET Any person who intends to be a Representative of an Agent must obtain a Certification of Knowledge from a Certifying Entity.
For this, the following norms applicable to the entire certification process are established.
(…) e) Professional Suitability Exams
The specialized component is related to the specific functions that the Advisory Representative, Operator or Portfolio Administrator will develop with respect to the following Financial Instruments:
a) Participation Instruments; b) Debt Instruments; or, c) Derivative Instruments; Additionally, the specialized component for the Portfolio Administrator Representative must include, in addition to all of the above, topics related to the function of portfolio administration.» (Highlighted by us)

That, letter d) of article 41 and letter e) of Annex F of the RAI, cannot be read in isolation from article 40 of the RAI, being that the first two mention the instruments that the operator-type representative can negotiate and the last qualifies report operations as a type of operation to be carried out by the operator-type representative, who in function of the underlying of said operation (financial instrument in question) must hold the respective knowledge certification, as appropriate as established in letter e) of Annex F of the RAI;

That, from the above, it is evident that report operations are not considered within the types of financial instruments for which the operator-type representative is authorized to operate, which according to the last paragraph of article 41 of the RAI cited above, are only referred to financial instruments of i) participation, ii) debt, or iii) derivatives. In this sense, although operator-type representatives can carry out report operations, in accordance with what is provided by article 40 of the RAI and 194 of the LMV, prior to their realization, they must request authorization to operate with the financial instrument underlying the report operation they wish to carry out, whether it is a debt instrument, participation or derivatives, as appropriate, and must

PERÚ Ministerio de Economía y Finanzas

That, according to the information on file, it can be seen that the General Manager of CARTISA communicated to the SMV the adaptation of MR. BALBUENA as his operator-type representative for participation instruments, by letter dated June 27, 2018, as observed below:

Image N° 01: Request letter presented by CARTISA

PERÚ Ministerio de Economía y Finanzas

That, according to the information and legal provisions cited, MR. BALBUENA was authorized to carry out, among others, reporting operations, in accordance with paragraph b) of Article 40 of the RAI, but only with participation instruments, as provided in Article 41 of the RAI;

That, likewise, it has been verified that the communication presented by the General Manager of CARTISA was carried out using the format established in Circular No. 407-2017-SMV/10.2, also cited by CARTISA in its arguments 11, through which the General Superintendence of Entity Supervision previously informed its supervised entities about the existence of a table of operations and phases equivalent to each type of representative (Annex 1):

«(...)
ii. Documents to be presented for the authorization of a representative:

Request according to Format No. 1 (indicate the type or types of representative, the operations requested to be carried out, and, if applicable, the phases of the intermediation process in which they will participate). For the purpose of harmonizing the operations and phases of the intermediation process requested with the type or types of representative whose authorization is requested, Annex 1 is attached with the table of operations and phases equivalent to each type of representative.
(...)» (Emphasis added)

That, likewise, the aforementioned table establishes the following:

«ANNEX 1
Table of Equivalent Functions by Type of Representative

Only includes the price maker option
Does not include the price maker option

The activities included in paragraphs e), g), h), j), k), l) m), n), o), r), t), u) of Art. 194 of the LMV and in paragraphs f), g), h), i) of Art. 207 of the LMV do not require authorization from the SMV.»

That, as can be observed, the cited table establishes, according to the type of representative authorized, the operations they can perform, taking as direct reference the operations established in articles 194 and 207 of the LMV and 47 of the RAI. In this way, it is established that operator-type representatives can carry out reporting operations included in paragraph q) of Article 194 of the LMV (paragraph q) of Article 190 of the TUO DE LA LMV), which does not mean that they should not demonstrate the knowledge required for the financial instrument involved in the reporting operation, as provided in Article 41 of the RAI;

That, consequently, it can be inferred that, at the time of submitting the adaptation request, CARTISA had taken into consideration the types of operations that an operator-type representative could perform, as well as the three types of financial instruments that it could operate. However, as previously stated, in said request, CARTISA requested that MR. BALBUENA serve as a representative, operator type, regarding, only, participation instruments;

That, on the other hand, regarding what CARTISA pointed out about the inclusion of reporting operations as a financial instrument different from instruments representing liabilities or equity being the result of the adaptation of the REPO OPERATIONS LAW; it must be emphasized that the aforementioned Law does not establish that reporting operations are qualified as financial instruments, it only refers to financial instruments in its Article 3, for the purpose of defining the scope of the concept of “securities” used by the norm:

«Article 3. Securities and Margins
For the purposes of this Law, the term “Securities” comprises securities, other securities, and financial instruments of patrimonial or credit content or representative of products, which may be represented in physical titles or in a dematerialized manner. “Securities” may correspond to issuances from the public or private sector. The issuance and transfer of “Securities” must be carried out in accordance with their nature and subject to the norms applicable to them. The parties may agree on “Margins” and their recalculation method to cover eventual variations in the value of the sum of money or in the quotation of the “Securities” during the validity of an “Operation”. The “Margins” granted in support of the “Operations” may be applied in the compensations referred to in paragraph b) of Article 10 of this Law.» (Emphasis added)

That, this clarification is important, since Article 1 of the aforementioned law uses the concept of “securities” to establish the scope of reporting operations:

«Article 1. Purpose of the Law
This Law regulates the legal regime applicable to financial reporting operations known as “Sale with Commitment to Repurchase”, “Simultaneous Sale and Purchase of Securities” and “Temporary Transfer of Securities”, hereinafter “Operation” or “Operations”, which are subject to the requirements provided in this Law, excluding those that do not meet the mentioned requirements. “Operations” imply the temporary transfer of ownership, both of the “Securities” that are the object of the operation, and of the sum of money or “Securities” that are given in exchange (initial agreed amount), reciprocally and simultaneously, as appropriate. Likewise, “Operations” imply the consequent obligation to return the ownership of said “Securities” to their original owner, or the obligation to reacquire ownership by their original owner, depending on the type of “Operation” in question; in exchange for the reciprocal and simultaneous transfer of a determined or determinable sum of money based on a market variable that may include interest, premium, or other, or in exchange for “Securities” (final agreed amount).» (Emphasis added)

That, according to this, it is understood that the norm specifies that reporting operations have as a component the securities that can be financial instruments. Furthermore, the aforementioned norm only uses the term “financial instruments” to refer to the securities that are components of the reporting operation;

That, in this sense, it is not possible to support the argument that the wording of the definition of financial instruments established in paragraph k) of Article 2 of the RAI is due to an adaptation to the REPO OPERATIONS LAW;

That, in accordance with the foregoing, the REPO OPERATIONS LAW does not qualify reporting operations as a financial instrument, which is consistent with what is stated in the LMV;

That, on the other hand, CARTISA maintains that it is unusual to expect that a law issued expressly to regulate reporting operations includes the reporting operation itself as a financial instrument in its content. Regarding this, it must be kept in mind that the REPO OPERATIONS LAW provides different concepts, such as in Article 1 where the components of the reporting operation are detailed. Likewise, as already mentioned, Article 3 uses the term financial instruments to refer to one of the types of securities that can be the object of the operation. Consequently, the legislator has not opted to qualify reporting operations as financial instruments. For this reason, we disagree with what is sustained in this regard by CARTISA;

That, likewise, CARTISA states that “it is extremely coincident” the modification incorporated with the current wording of paragraph k) of Article 2 of the RAI (published on December 19, 2015) with the adaptation obligation established in the REPO OPERATIONS LAW, published on June 27, 2013;

That, regarding this, it is reiterated that the REPO OPERATIONS LAW does not define reporting operations as financial instruments and, therefore, the wording of paragraph k) of Article 2 of the RAI has no connection with what is provided in said law, and even less could it be sustained that it is an adaptation;

That, on the other hand, the contradiction of CARTISA regarding this supposed adaptation of the RAI to what is provided in the REPO OPERATIONS LAW must be evidenced. Indeed, as seen in the last paragraph of Image No. 3, extracted from its appeal resource, CARTISA maintains that the wording of paragraph k) of Article 2 is an adaptation to what is provided in the aforementioned law:

Imagen N° 03: Recurso de apelación

That, nevertheless, as seen in the second paragraph of Image No. 4, extracted from its written arguments dated March 21, 2024, CARTISA contradicts itself by arguing that to date, the adaptation to the RAI has not occurred:

Imagen N° 04: Alegatos escritos

That, likewise, CARTISA states that there is no norm that establishes that, to carry out reporting operations, the representative who intermediates in them must have obtained the Knowledge Certification referred to in Annex F of the RAI to intermediated with the financial instrument included in the respective operation. The evidence would be found in the fact that Annex F only contemplates participation instruments, debt instruments, and derivatives, excluding reporting operations;

That, regarding what CARTISA affirmed, it is reiterated that Annex F does not comprise reporting operations, since according to Article 41 of the RAI, it does not consider reporting operations as financial instruments. Indeed, as already mentioned, reporting operations are considered as a type of operation that representatives can perform and not as a financial instrument per se and, for this reason, Annex F only considers participation, debt, and derivative financial instruments;

That, CARTISA also argues that to carry out reporting operations it is sufficient to have the condition of representative and the same applies to the other activities to which they are authorized; which for CARTISA would have been corroborated by the Legal Advisory Office on page 14, section III, of its REPORT in which it states the following:

That, regarding this, what CARTISA affirms cannot be admitted, in the sense that reporting operations can be carried out by any representative without considering the financial instrument on which the operation is based and whether the representative is authorized to operate with said instrument. It must be reiterated that reporting operations are operations that operator-type representatives can perform, according to the instrument they are authorized for, since there would be no legal basis to allow an operator-type representative to carry out operations that have as an element financial instruments of which they do not have accredited knowledge;

That, in the same sense, it must be warned that the citation about the REPORT made by CARTISA is incomplete, as it is not citing the entire paragraph of the REPORT subject to comment. Therefore, the paragraph is transcribed in its entirety below:

«It must be highlighted that Article 41° of the RAI expressly establishes that the authorization of operator-type representatives is granted according to the type of financial instruments that will be operated, which may be Participation Financial Instruments, Debt, or Derivatives. Reporting operations are not included, since Article 40 of the RAI, in concordance with Article 190 of the TUO of the LMV, establishes that reporting operations are only operations carried out by the agent. For this reason, no special knowledge accreditation is required to carry out said operations, provided that they have as their object financial instruments (participation or debt financial instruments) that are authorized for the operator-type representative, according to Article 41 of the RAI.» (Our highlighting)

That, as can be appreciated from the cited text, what the Legal Advisory Office emphasizes in the REPORT is that to carry out a reporting operation, the operator-type representative must have the authorization to operate with the participation or debt instrument that is the object of the reporting operation. In this sense, to carry out a reporting operation with a debt instrument, as is the case under analysis, the operator-type representative must be authorized to operate with debt instruments;

That, on the other hand, CARTISA also argues that its interpretation regarding the nature of reporting operations as financial instruments stems from the reading of the joint reports that were issued on the occasion of the approval of the RAI;

That, regarding this, it must be warned that the interpretation alleged by CARTISA starts from the isolated reading of paragraph k) of Article 2 of the RAI. Nevertheless, in the sanctioning procedure that led to the issuance of the SANCTION RESOLUTION, the object was to determine if CARTISA complied with observing the provisions contained in the RAI, in this case, linked to the operations its representative was carrying out, and therefore, the analysis started from the integrated application of Articles 40 and 41 of the RAI and its Annex F, and paragraph q) of Article 194 of the LMV, according to the analysis expressed above, since these articles are the ones linked to the operations that representatives can perform according to the authorization they have been granted, and not starting from paragraph k) which is part of an article that has a general character, such as Article 2;

b. On CARTISA's participation in the treasury bill negotiation regime

That, regarding CARTISA's participation in the negotiation with treasury bills, it must be warned that CARTISA's interpretation of numeral 1.17 of section 1 of the NEW TREASURY BILLS REGULATION is not carried out integrally with all the content of said numeral. Regarding this, the extracts of the aforementioned numeral highlighted by CARTISA are transcribed;

«(...) iv) eligible entities and other entities that participate in centralized negotiation mechanisms. For control and supervision purposes, the SMV may request information from the aforementioned entities in order to safeguard compliance with the norms that regulate the functioning of such centralized negotiation mechanisms, as well as with the general norms approved by the SMV applicable to them.» (Highlighted by CARTISA)

That, below, the entire text of numeral 1.17 of section 1 of the NEW TREASURY BILLS REGULATION is cited, which is composed of three (03) paragraphs:

«1.17 Supervisory Entity
The Superintendencia del Mercado de Valores (SMV) establishes the requirements that organizers of centralized mechanisms in which public debt securities are traded must comply with, authorizes their functioning, approves their internal regulations, and supervises the operations carried out in them. The SMV is the State body responsible for the supervision of:
i) the authorized centralized negotiation mechanisms in which auctions of bills convened by the Responsible Unit are held or the negotiation of said public debt securities takes place, ii) the entities that conduct said mechanisms, iii) the entity that administers the electronic system for the book-entry representation of public debt securities, iv) eligible entities and other entities that participate in the centralized negotiation mechanisms. For control and supervision purposes, the SMV may request information from the aforementioned entities in order to safeguard compliance with the norms that regulate the functioning of such centralized negotiation mechanisms, as well as with the general norms approved by the SMV applicable to them.»

That, in this sense, according to the integral reading of the cited numeral, it is observed that the first paragraph establishes the regulatory authority of the SMV over the centralized mechanisms in which public debt securities are traded;

That, likewise, the regulatory and supervisory authorities held by the SMV regarding centralized negotiation mechanisms and stockbroker agent societies cannot be overlooked, as provided in paragraphs a) and b) of Article 112 of the Concorded Single Text of the Organic Law of the SMV, Decree Law No. 26126 and the express powers to authorize their functioning and supervision, established in Articles 111 and 168 of the LMV;

12 «Article 1. Definition, purpose and functions of the Superintendencia del Mercado de Valores (SMV) The Superintendencia del Mercado de Valores (SMV) is a specialized technical organism attached to the Ministry of Economy and Finance whose purpose is to ensure 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. It has legal personality of internal public law and enjoys functional, administrative, economic, technical, and budgetary autonomy, constituting a budgetary item. Its functioning is governed by the provisions contained in this Law and its regulation of organization and functions. The functions of the Superintendencia del Mercado de Valores (SMV) are the following:
a. Issue the legal norms that regulate matters of the securities market, product market, and collective fund system. b. Supervise compliance with the legislation of the securities market, product market, and collective fund systems by natural and legal persons participating in said markets. (...)» 13 «Article 111.- Authorization and Supervision.- CONASEV establishes the requirements that organizers of centralized mechanisms must comply with, authorizes their functioning, approves their internal regulations, and supervises the operations carried out in them.» 14 «Article 168.- Authorization of Organization and Functioning.- To perform as an intermediation agent, authorization of organization and functioning issued by CONASEV is required, who, through general provisions, will determine the requirements for each class of intermediation agent. Intermediation agents are subject to the control and supervision of CONASEV.»

PERÚ Ministerio de Economía y Finanzas

That, by virtue of this, the SMV has regulatory and supervisory powers under legal rank norms, which cannot be limited to merely requesting information;

That, on the other hand, it must be highlighted that the operations carried out by MR. BALBUENA were channeled through the BVL negotiation system, being that the only people who can enter orders in said system are the REPRESENTATIVES OF THE SABs who are duly authorized to operate with the financial instrument subject to the order. This does not align with the report of the observed operations in which MR. BALBUENA participated;

That, subsection i) of section 4 of the NEW TREASURY BILL REGULATION STATES THE FOLLOWING:

«4. CENTRALIZED NEGOTIATION MECHANISMS FOR PUBLIC DEBT The Responsible Unit, through a Directorial Resolution, will authorize the secondary negotiation of bills in centralized negotiation mechanisms, whose operation shall adhere to the provisions issued by the SMV, which must meet at least the following requirements:
a) Have a Continuous Negotiation Module in which participants in the public debt market, including the Responsible Unit, can carry out continuous and anonymous negotiation of these securities in a single environment or general level, and must also have a special level, separate from the general level, only for Market Makers and the Responsible Unit. b) Guarantee that the negotiation system of the Continuous Negotiation Module operates without quotas or counterparty limits, accepts different types of offers, and ensures automatic matching, prioritizing the best quotes and proposals. c) Have a Registration Module to allow those operations carried out outside the Continuous Negotiation Module to be registered. d) Implement the methodology established by the Responsible Unit to set the maximum price interval, in relation to publicly calculated reference prices, outside of which buy or sell proposals cannot be entered in the Continuous Negotiation Module. (…) i) Allow any market participant to freely contract access to the services offered by the centralized negotiation mechanisms.» (Highlighted by CARTISA)

That, regarding this, it is advised that the subsections of the norm are requirements that centralized negotiation mechanisms whose operation adheres to SMV provisions must meet. Indeed, subsection i) refers to a

PERU Ministry of Economy and Finance

That, in that order of ideas, it is necessary to reiterate that it is not possible to sustain that subsection i) enables any market participant to freely contract access to the services offered, and since this is the case, the Stock Exchange Brokerage Societies (SABs), to whom the SMV grants the operating authorization, are not exempt from complying with the regulations established by the SMV, since they carry out their operations through the centralized mechanisms of the BVL, with prior SMV authorization;

That, in addition, CARTISA states in its statement of defense that until the Board of Directors rules, it cannot be demanded that the representatives of the Stock Exchange Brokerage Societies must have authorization to intervene in operations on treasury bills, and also points out that in the present case, the operations carried out with treasury bills have been carried out under the provisions of subsection e) of article 194 of the SMV Law, so it could not be demanded that MR. BALBUENA had authorization to operate with debt instruments;

That, through its final statements, CARTISA seeks to reinforce its argument backed by Joint Report No. 1020-2015-SMV/06/10/12, which states that operations framed in subsection e) of article 194 of the Securities Market Law do not require authorization;

That, regarding this, it must be emphasized that the operations carried out by MR. BALBUENA were channeled through the BVL negotiation platform, being that the only people who can carry out operations on said platform are the representatives of the Stock Exchange Brokerage Societies duly authorized according to their type and the financial instrument on which they have authorization. Consequently, having carried out operations with debt instruments by a representative of the operator type authorized to operate with participation instruments, a non-compliance with the operations that the representative can carry out has occurred, as provided in articles 40 and 41 of the RAI;

That, likewise, it must be indicated that the subscription or temporary acquisition of an issuance by an intermediary can be channeled through a person duly empowered to act on behalf of the society before an issuer and that is not necessarily a representative. However, said acquisition in the present case was carried out on the BVL negotiation platform, so it was required that the operator-type representative be duly authorized to carry out this type of operations with this type of financial instrument;

That, finally, the carrying out of operations in the secondary market, among others, implies investment execution decisions on behalf of the brokerage society's clients, so for such cases, the regulations have provided that the intermediation process be through an authorized person with specialized knowledge on the types of financial instruments, since the goal is to ensure investor protection. Consequently, MR. BALBUENA had to be duly authorized to carry out operations with debt instruments;

PERU Ministry of Economy and Finance

That, regarding what CARTISA manifested about there being no norm that restricts the participation of the representative of an SAB in a repo operation as long as this is a financial instrument different from debt or participation instruments, nor in the primary and secondary negotiation of treasury bills, that is, atypicality because they are not previously and taxatively provided as sanctionable conduct, it must be pointed out that on this aspect, the reasons why the arguments presented by CARTISA are dismissed have been developed in the preceding considerations, which seeks to qualify repo operations as financial instruments and those referred to the negotiation of treasury bills. Consequently, it is not possible to shelter the defense arguments raised by CARTISA;

That, likewise, regarding the atypicality by extensive or analogical interpretation argued by CARTISA 15, it must be observed that in the SANCTION RESOLUTION this argument has been addressed in considerations 84 and 87 which we quote below:

«84. Thus, as national doctrine well points out, some administrative types are not autonomous. This means that incurring in an infringing conduct is not evidenced by an exact description of the infringing type, but arises from the conjunction of two norms: the norm that mandates or prohibits and the one that indicates that the non-compliance with said mandate constitutes an infringement; (…)
87. Therefore, the imputed infringing type does not violate the principle of typicity, since it is observed that the elements of the principle of typicity have been produced: i) the norms that mandate, are articles 40, 41 and 44 of the RAI that impose that the representatives of the intermediation agent must have SMV authorization according to the type of instrument with which they operate or advise, so there is a "should be" that should have been fulfilled by the brokerage society; and, ii) the norm that indicates that the non-compliance with said mandate is an infringement developed in Annex X, numeral 1, subsection 1.7 of the OLD SANCTIONS REGULATION and Annex X, numeral 1, subsection 1.4 of the NEW SANCTIONS REGULATION;»

That, in light of what has been exposed, it is evident that in the content of the SANCTION RESOLUTION the application of the principle of typicity has been observed, since it explains what is the infringing type provided in the regulations;

That, in the present case, no extensive or analogical interpretation has been incurred, but rather the application of the indirect typification method, which is collected in numeral 4 of article 230 of the LPAG:

15 By considering the imputed conduct as included in the sanctionable case provided by: Annex X, numeral 1, subsection 1.4 of the New Sanctions Regulation; "(…) by not observing that its representative complies with the requirements established in the current regulations (…)":

PERU Ministry of Economy and Finance

That, the author Morón Urbina explains the use of indirect typification in the following way:

«Indirect Typification
The application of indirect typification was already noticed by NIETO when he accounted for the fact that administrative typification, unlike penal typification, generally materializes through three precepts: i) A first element of the type that establishes a mandate or a specific prohibition for the administrator (the one that indicates "It is prohibited to do X"); ii) A second element of the type that warns that this non-compliance constitutes a sanctionable infringement ("Non-compliance with X constitutes an infringement"); and, finally a third element (the sanction applicable to the case). Since these three elements usually do not appear in the same norm, but are dispersed in different norms, and even separate normative bodies, we speak of the indirect typification of the administrative offense, unlike the penal legal type, which is unique.»

That, as sustained in the SANCTION RESOLUTION, CARTISA was sanctioned for contravening what is provided in article 44 17 of the RAI, which establishes that the agent must verify that its representatives maintain the requirements

16 MORON, Juan Carlos. Comments on the General Administrative Procedure Law (2019), Volume II, Fourteenth Edition. Gaceta Jurídica: Lima. Page 427.
17 «Article 44.- Validity of Representatives
The authorization of the Representatives of an Agent loses its validity in the following cases:
a) Cancellation or revocation of the representative's authorization; b) Termination of the contractual relationship between the Representative and the Agent. This fact must be communicated by the Agent, the next day it occurs, to the SMV and to the Exchange, in the case of Brokerage Societies; c) One year has passed without having remedied the conditions that gave merit to its suspension; and, d) Cancellation or revocation of the Agent's operating authorization; The suspension of the Agent's operating authorization implies the suspension of the Representative's authorization, unless otherwise provided. The authorized Representative is responsible for renewing the Certification of Knowledge before its expiration. If not done, the corresponding authorization will be automatically suspended. The Agent must verify that its Representatives maintain the requirements or conditions that gave merit to their authorization and that they only act on behalf of the Agent for the functions for which they were authorized as Representatives. The Agent must immediately communicate to the SMV if its Representative has ceased to observe any of its requirements and conditions that gave merit to their authorization.» (Provision in force at the time the observed operations were carried out)

PERU Ministry of Economy and Finance

That, article 44 of the RAI constitutes the first element mentioned by the cited author. Subsection 1.7 of numeral 1 of Annex X of the OLD SANCTIONS REGULATION and subsection 1.4 of numeral 1 of Annex X of the NEW SANCTIONS REGULATION are the second element and, finally, article 20 18 of the OLD SANCTIONS REGULATION and article 33 19 of the NEW SANCTIONS REGULATION are the third element;

That, as exposed, the type of infringement has been detailed. However, it must be stressed that, in the present case, the sanction is less than fifty (50) UITs based on the evaluation carried out by the SASP of the criteria established in the principle of reasonableness incorporated in numeral 3 20 of article 230 of the LPAG, and what is provided in the third paragraph of article 6 21 of the OLD SANCTIONS REGULATION and article 25 22 of the NEW SANCTIONS REGULATION;

18 «Article 20.- Sanctions for Very Serious Infringements.- For the commission of very serious infringements, one of the following sanctions is imposed on the infringer:
a) Fine greater than fifty (50) UIT and up to seven hundred (700) UIT; (…)» 19 «Article 33.- SANCTIONS FOR VERY SERIOUS INFRINGEMENTS For the commission of very serious infringements, one of the following sanctions is imposed on the infringer:
a) Fine not less than fifty (50) UIT and up to seven hundred (700) UIT; (…)» 20 «Article 248.- Principles of the administrative sanctioning power The sanctioning power of all entities is additionally governed by the following special principles:
(…)
3. Reasonableness.- Authorities must foresee that the commission of the sanctionable conduct does not result in more advantage for the infringer than complying with the infringed norms or assuming the sanction. However, the sanctions to be applied must be proportional to the non-compliance qualified as an infringement, observing the following criteria which are indicated for their graduation:
a) The illicit benefit resulting from the commission of the infringement; b) The probability of detection of the infringement; c) The gravity of the damage to the public interest and/or protected legal good; d) The economic damage caused; e) Recidivism, for the commission of the same infringement within a period of one (1) year from when the resolution sanctioning the first infringement became final. f) The circumstances of the commission of the infringement; and g) The existence or non-existence of intent in the infringer's conduct». 21 «Article 6.- CRITERIA AND MITIGATING FACTORS TO CONSIDER FOR THE IMPOSITION OF SANCTIONS The administrative sanctions imposed must take into account the criteria established in article 348 of the Law or article 7 of Legislative Decree No. 21907 on Collective Fund Administration Companies, as applicable; and numeral 3 of article 230 of the Procedure Law. (…) When the evaluation of the aforementioned criteria and mitigating factors allows concluding that there is no proportionality between the sanction to be imposed and the imputed facts, by exception and through a reasoned resolution, a sanction corresponding to a classification lower than that provided can be imposed. (…)» 22 «Article 25.- SANCTION CRITERIA The administrative sanctions imposed must take into account the following criteria:
a) Antecedents, for firm sanctions imposed by the SMV within the four (4) years prior to the commission of the infringement to be sanctioned. The commission of the same infringement in the year prior to the infringement to be sanctioned is not considered as antecedents. b) Recidivism, for the commission of the same infringement, the firm sanction imposed by the SMV within a period of one (1) year prior to the commission of the infringement to be sanctioned is taken into account. c) Circumstances of the commission of the infringement.

PERU Ministry of Economy and Finance

That, it should be specified that, the Constitutional Tribunal 23 also has pointed out that the principle of typicity admits an abstract formulation, but does not admit imprecise formulations:

«(…) it must be kept in mind that both legal norms, in general, as well as penal types [and also administrative types], in particular, have, by their very nature, an abstract and general character; so such characteristics, per se, do not violate any constitutional norm. Different is the case of the "imprecise" character of the penal norm that is also questioned; since, as indicated, the legislator, by constitutional mandate, must typify crimes in an express and unequivocal way, so it is possible to analyze each of the concepts questioned in order to verify if this guarantee has been observed.»

That, for this reason, the principle of typicity has not been violated nor has the atypical mode of general or indeterminate clauses been incurred; since, as previously exposed, the type of infringement presents a reasonable and sufficient degree of determination, to establish the scope of prohibition, which is referred to the fact that the intermediation agent did not observe that its representative complies with the requirements established in the current regulations;

That, in its appeal statement, CARTISA maintains that the principle of typicity and taxativity is violated by not establishing in the NEW TREASURY BILL REGULATION that the representative is authorized to operate with this type of instruments, being that the mentioned regulation is extremely clear in establishing that "(…) any market participant may freely contract access to the services offered by the centralized negotiation mechanisms."

That, regarding this, as already mentioned above, it cannot be understood that the freedom to contract access to the services offered by the centralized negotiation mechanisms means that SMV provisions do not have to be complied with, such as the RAI;

That, likewise, CARTISA points out that there has been a violation of the fundamental right consisting in that "No one is obliged to do what the law does not prohibit" and its complement "No one is obliged to do what the law does not mandate". Regarding this, in previous paragraphs, the norms in which the obligation originates for MR. BALBUENA to have authorization to operate with

d) Economic damage caused and its repercussion in the market. e) Illicit benefit resulting from the commission of the infringement. f) Probability of detection of the infringement. g) Gravity of the damage to the public interest and/or protected legal good. h) Existence or non-existence of intent in the infringer's conduct. When, from the evaluation of the aforementioned criteria, it is observed that there is no proportionality between the sanction to be imposed and the imputed facts, by exception and through a reasoned resolution, a sanction corresponding to a classification lower than that provided can be imposed». 23 Foundations 54 and 55 of the Ruling of the Constitutional Tribunal issued in file No. 0010-2002-AI/TC.

PERU Ministry of Economy and Finance

SMV
Securities Market
Superintendence
"Decade of Equal Opportunities for Women and Men" "Year of the recovery and consolidation of the Peruvian economy" Electronically signed document in the framework of Law No. 27269, Law on Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and the authorship of the signature(s) can be verified at https://apps.firmaperu.gob.pe/web/validador.xhtml debt instruments to carry out the operations it performed. Consequently, the fundamental right alleged by CARTISA has not been violated; d. Regarding the typical acts of ideological falsity That, regarding the possibility that the SMV may have committed the type of ideological falsity, it must be specified that, although this is not an aspect that needs to be resolved in the present procedure, it is pertinent to mention that, this type requires the existence of false declarations. In the case under analysis, the assertion "to perform operations" does not imply that the crime of ideological falsity has occurred; That, in effect, in the present procedure CARTISA has been sanctioned for not observing that its representative complied with the requirements established in the regulations, an obligation established in Article 44 of the RAI and, specifically, for not observing Articles 40 and 41 of the aforementioned regulation, which establish the permitted operations according to the type of representative. In this way, from our point of view, the non-compliance is verified, and it is not that with the incorporation of the phrase "to perform operations" the type is configured or that it supports the infringement as is maintained, therefore we do not consider that it can be affirmed that this makes the crime of ideological falsity configured; That, it must be warned that the purpose of the crime of ideological falsity is to sanction the conduct of inserting false declarations concerning facts that must be proven with the document into a public instrument, as established by the Supreme Court in the Supreme Execution corresponding to the Cassation Appeal No. 01118-2016/LAMBAYEQUE:
"Fifth. Under this sieve, a topic of marked interest is appreciated. The need to establish the scope of Article 428 of the Penal Code (crime of ideological falsity) is exposed, that is, the criminal conduct (inserting false declarations concerning facts that must be proven with the document into a public instrument) and the nature of the object upon which the penal action falls (the quality or not of public document of the Sworn Declaration 1B). This, in turn, requires the verification of the reasons expressed by the lower instances to support their decision, since the crime of ideological falsity was declared proven despite it being accredited that the witnesses signed their respective sworn declarations." That, in that order of ideas, the incorporation of the assertion "to perform operations" is not mendacious insofar as, according to the SANCTION RESOLUTION and other documents in the file, CARTISA has been sanctioned for non-compliance with the regulations to carry out certain operations by its representative. The addition of the phrase "to perform operations" does not affect nor change the type of infringement nor less the existence of the infringement that motivated the sanction by the first instance, as explained above, it is a case of indirect typification, recognized by our legislation; That, without prejudice to the foregoing, if CARTISA considers that the SMV has committed the crime of ideological falsity, it can assert its right in the corresponding instances;

PERU Ministry of Economy and Finance

SMV
Securities Market
Superintendence
"Decade of Equal Opportunities for Women and Men" "Year of the recovery and consolidation of the Peruvian economy" Electronically signed document in the framework of Law No. 27269, Law on Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and the authorship of the signature(s) can be verified at https://apps.firmaperu.gob.pe/web/validador.xhtml e. Regarding the legal ineffectiveness of the current regulation related to reporting operations That, in its statement of allegations, CARTISA maintains the ineffectiveness of the current regulation on reporting operations, since the SMV would not have complied with what is established in the First Complementary and Final Provision of the REPORTING OPERATIONS LAW; That, in view of this, it is reiterated that there is already a regulation on reporting operations approved by the SMV, as can be appreciated in the RAI and the REGULATIONS OF OPERATIONS, which allows the carrying out of said operations and which must be observed by brokerage societies and their representatives; That, on the other hand, regarding what was manifested by CARTISA in its statement of allegations and in the oral report, regarding the fact that it is irregular that through Office No. 825-2019-SMV/10.2, an administrative procedure was established and the BVL is compelled to establish access restrictions to its trading system based on the financial instrument to which each representative is authorized; including this requirement in reporting operations, a financial instrument that according to CARTISA should not be segmented by its underlying, it must be stated that this argument has no incidence with the present procedure; however, it is pertinent to mention that Office No. 825-2019-SMV/10.2 sent to the BVL by the General Superintendent of Entity Supervision, shares the position expressed in the SANCTION RESOLUTION, since it has the purpose of requesting information from the exchange about the controls or security measures it has implemented to ensure compliance with the norms indicated in the office, among which are Articles 40 and 41 of the RAI and, in case of not having the respective controls or security measures, it requests sending a schedule of activities for the implementation of said controls or security measures. Additionally, it is worth highlighting that the argument sustained by CARTISA, in the sense that reporting operations should not be included in said restrictions based on its interpretation, has been disproven as explained in the preceding considerations; f. Regarding the nullity raised by CARTISA That, in the oral report and in its final allegations, CARTISA requested the nullity of the entire sanctioning procedure, maintaining, concretely, that the civil servant who signed Report No. 325-2024-SMV/06, was inactive according to information collected from the Lima Bar Association, an aspect that is not in accordance with the SMV's Job Classifier Manual, approved by
Superintendent Resolution No. 113-2023-SMV/02, which establishes as a requirement for the position of Deputy Superintendent of Legal Advice the authorization for professional practice; That, for the purpose of issuing a pronouncement on the request for nullity of the procedure, the following legal grounds must be considered:

PERU Ministry of Economy and Finance

«Article 235. Sanctioning Procedure
Entities in the exercise of their sanctioning power adhere to the following provisions:

The sanctioning procedure always begins ex officio, either by its own initiative or as a consequence of superior order, motivated request from other organs or entities or by complaint.
Prior to the formal initiation of the procedure, preliminary investigation, inquiry and inspection actions may be carried out with the object of determining preliminarily if circumstances concur that justify its initiation.
Once the initiation of the sanctioning procedure is decided, the instructional authority of the procedure formulates the respective notification of charge to the possible sanctioned, which must contain the data referred to in numeral 3 of the preceding article so that it presents its written defense in a term that cannot be less than five (5) business days counted from the date of notification.
Upon expiration of said term and with the respective defense or without it, the authority that instructs the procedure will ex officio carry out all necessary actions for the examination of the facts, gathering the data and information that are relevant to determine, if applicable, the existence of responsibility susceptible of sanction.
Concluded, if applicable, the collection of evidence, the instructional authority of the procedure concludes by determining the existence of an infringement and, therefore, the imposition of a sanction; or the non-existence of infringement. The instructional authority formulates a final instructional report in which it determines, in a motivated manner, the conducts considered proven constitutive of infringement, the norm that provides for the imposition of sanction; and, the proposed sanction or the declaration of non-existence of infringement, as appropriate.
Upon receipt of the final report, the competent organ to decide on the application of the sanction may dispose of the carrying out of complementary actions, always that it considers them indispensable to resolve the procedure. The final instructional report must be notified to the administrated so that it formulates its defense in a term not less than five (5) business days.
The resolution that applies the sanction or the decision to archive the procedure will be notified both to the administrated and to the organ or entity that formulated the request or to whoever denounced the infringement, if applicable.» (The underline and bold are added)
25 «Article 217. Power of Contradiction
217.1. According to what is stated in Article 120, before an administrative act that is supposed to violate, disregard or harm a right or legitimate interest, its contradiction in the administrative route proceeds through the administrative appeals indicated in the following article, initiating the corresponding recursive procedure». (The underline and bold are added)
26 «Article 218. Administrative Appeals
218.1. The administrative appeals are:
a) Reconsideration Appeal b) Appeal
Only in case that by law or legislative decree it is expressly established, the filing of the administrative appeal of revision is admissible.
(…)»
27 «Article 228.- Exhaustion of the Administrative Route
228.1. The administrative acts that exhaust the administrative route may be challenged before the Judicial Power through the contentious administrative process referred to in Article 148 of the Political Constitution of the State».

PERU Ministry of Economy and Finance

SMV
Securities Market
Superintendence
"Decade of Equal Opportunities for Women and Men" "Year of the recovery and consolidation of the Peruvian economy" Electronically signed document in the framework of Law No. 27269, Law on Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and the authorship of the signature(s) can be verified at https://apps.firmaperu.gob.pe/web/validador.xhtml (b) Article 18 28 of the NEW REGULATIONS OF SANCTIONS regulates the administrative appeals that can be filed in administrative sanctioning procedures before the SMV, according to what is provided in the LPAG, the cited article incorporates in relation to the appeal, that " (…) the General Secretariat notifies the administrated the report of the Legal Advice Office on the appeal filed to the administrated so that it formulates its allegations before the Superintendent of the Securities Market in a term not less than five (5) days, counted from the day following the mentioned notification"; The administrated may request the use of the word before the Deputy Superintendents and the Superintendent of the Securities Market; The Deputy Superintendents and the Superintendent of the Securities Market act with full independence and autonomy in the exercise of their functions. (…)"; (c) Although the cited regulation recognizes that in the recursive phase of the sanctioning procedure in charge of the second administrative instance of the SMV an report is issued by the Legal Advice Office, it must be indicated that said document is not binding for the Superintendent of the Securities Market, since as indicated in the preceding numeral, by citing article 18 of the NEW REGULATIONS OF SANCTIONS, the Superintendent of the Securities Market acts with full independence and autonomy in the exercise of its functions; (d) On its part, Article 9 of the LPAG refers that every administrative act is considered valid as long as it is not declared null by the administrative authority or jurisdictional; The author Jorge Danós Ordóñez, when commenting on the "Regime of the Nullity of administrative acts in the LPAG 29", states the following: «Therefore an act administrative "null" would be that which suffers from some of the causal of transcendent or relevant invalidity provided by Article 10 of the LPAG and that have been expressly declared as such ("null ipso jure" says the first paragraph of Article 10 of the LPAG) by the administrative or judicial authority competent (…)»; (e) Now well, to determine if we are or not before some of the causes of nullity ipso jure by transcendent vices one must review the text of Article 10 of the LPAG:
«Article 10°.- Causes of Nullity
Are vices of the administrative act, which cause its nullity ipso jure, the following:

The contravention to the Constitution, to the laws or to the norms
regulatory.
The defect or omission of any of its validity requirements, unless
any of the cases of conservation of the act to which Article 14 refers is presented.
The express acts or those that result as a consequence of the
automatic approval or by positive administrative silence, by which faculties, or rights, are acquired, when they are contrary to the legal order, or when the requirements, documentation or essential procedures are not met for its acquisition.
The administrative acts that are constitutive of penal infringement,
or that are issued as a consequence of the same.» That, likewise, with relation to the supposed vice that was incurred with the issuance of Report No. 325-2024-SMV/06, it corresponds to point out that Article 215 30 of the Regulation of Law No. 30057 – Law on Civil Service, approved by Supreme Decree No. 040-2014-PCM, refers that the acts issued by the supposed vice expressed by CARTISA in its final allegations are not null. Likewise, the cited norm contemplates the possibility that the server may remedy said situation in a determined term; That, on the other hand, the vice argued by CARTISA, is not transcendent and is remediable, as it also emerges from the foundation 19 of the sentence issued in File 03895-2019-PA/TC, by the Constitutional Court states the following:

30 «Article 215.- Term for Ineligibility for Professional Practice The ineligibility for professional practice referred to in clause h) of Article 49 of the Law for a period greater than three (3) calendar months is that imposed on the server by the professional colleges. The conclusion of the bond proceeds when the professional ineligibility prevents the server from exercising the position that at the date of its occurrence it is occupying. It is recognized and declared in the same terms provided in the preceding article. The conclusion of the bond is not admissible if the ineligibility occurred as a sanction for non-payment of dues to the professional college. In that case, the server will have a term of fifteen (15) business days to regularize its situation and communicate it to the entity. Upon expiration of that term, without the situation having been regularized, the entity will proceed to issue the resolution or communication, as appropriate, concluding the bond. The term of the conclusion of the bond in the present case governs from the date on which the ineligibility takes effect. The acts that have been produced, from that date and until the Human Resources Office took knowledge of the same, are not null. In no case, the granting of some right or form of additional economic or non-economic compensation corresponding legally for the term of the conclusion of the bond may be agreed. The resolution that is issued or communication, as the case may be, the term of the conclusion of the bond will have declarative effects».

PERU Ministry of Economy and Finance

“(…) in those cases in which, having used the relevant mechanisms to accredit a litigating lawyer, it is observed that this lawyer is in a condition of ineligibility in the professional college to which he belongs, as this constitutes a formal deficiency, it will be necessary to grant a reasonable period in order for this to be remedied. It should be remembered that this Constitutional Tribunal has stated that ‘(…) the need to grant a reasonable period to remedy deficiencies of a strictly formal nature that may be incurred in lawsuits, appeal means and resources in general presented to the judiciary, must be considered as a criterion inherent to every procedural order, in application of the pro actione criterion and in safeguarding effective jurisdictional protection, pursuant to paragraph 3) of article 139 of the Constitution’ [cf. Resolution 00503-2002-AA/TC and Judgment 00616-2003-AA/TC];” (Highlighting ours)

That, in the present case, it is observed from the text of Office No. 123-2024-CAL/SG issued by the Lima Bar Association, presented by CARTISA in its final arguments, that the alleged defect was remedied on April 04, 2024, the same day that the oral hearing was held before this office;

That, likewise, it is important to keep in mind what is established in article 14 of the LPAG on the conservation of the administrative act for non-trascendental defects:

“Article 14.- Conservation of the act
14.1 When the defect of the administrative act due to non-compliance with its elements of validity is not trascendental, the conservation of the act prevails, proceeding to its amendment by the issuing authority itself.
14.2 The following are administrative acts affected by non-trascendental defects:
14.2.1 The act whose content is imprecise or incongruent with the issues arising from the motivation.
14.2.2 The act issued with insufficient or partial motivation.
14.2.3 The act issued in infringement of non-essential formalities of the procedure, considering as such those whose correct realization would not have prevented or changed the meaning of the final decision in important aspects, or whose non-compliance would not have affected the due process of the administered.
14.2.4 When it is concluded beyond doubt in any other way that the administrative act would have had the same content, had the defect not occurred.
14.2.5 Those issued with omission of non-essential documentation.
14.3 Notwithstanding the conservation of the act, the administrative responsibility of the issuer of the defective act persists, unless the amendment occurs without request from the party and before its execution.” (Highlighting ours)

That, in the hypothetical negative case that a defect had occurred in the procedure, as alleged by CARTISA, it would not result

PERÚ Ministerio de Economía y Finanzas

trascendental and, in application of article 14 cited above and under the protection of the legal provisions previously developed, said act would be conservable;

That, it is worth highlighting that the intervention of the civil servant has not generated any affectation to the due procedure, since CARTISA has been able to exercise all the rights that constitute said principle before this office;

That, likewise, in the hypothetical case that the defect alleged by CARTISA had occurred, it must be noted that the defect would have presumably occurred in the appellate stage and not in the instruction and sanction stages. Consequently, it would not be possible to support the request for declaration of nullity of the entire procedure;

That, for the foregoing, the foundations of the SANCTIONING RESOLUTION have not been disproven; and,

Being in accordance with what is provided in numeral 26 of article 12 of the Regulation of Organization and Functions of the SMV, approved by Supreme Decree No. 216-2011-EF and its modifications;

RESOLVES:

Article 1°.- Declare unfounded the appeal filed by Sociedad Agente de Bolsa Cartisa Perú S.A against Adjunct Superintendent Resolution SMV No. 033-2022-SMV/10.

Article 2°.- Declare the administrative route exhausted.

Article 3°.- Transcribe this resolution to Sociedad Agente de Bolsa Cartisa Perú S.A and to the Lima Stock Exchange S.A.

Article 4°.- Order the dissemination of this resolution on the Institutional Page of the Superintendence of the Securities Market on the Unique Digital Platform of the Peruvian State (www.gob.pe/smv).

Zósimo Juan Pichihua Serna
Superintendent of the Securities Market

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