Superintendent Resolution No. 013-2025-SMV/02 — SMV — PE

Superintendent Resolution
No. 013-2025-SMV/02

Lima, January 30, 2025

The Superintendent of the Securities Market

SEEN:

File No. 2022004846 and Report No. 1773-2024-SMV/06, from the Legal Advisory Office, through which it issues an opinion on the appeal filed by Pandero S.A. EAFC (hereinafter, PANDERO EAFC) against Adjunct Superintendent Resolution SMV No. 006-2022-SMV/10, as well as the statement of arguments dated January 10, 2025, presented by PANDERO EAFC;

CONSIDERING:

That, through Adjunct Superintendent Resolution SMV No. 006-2022-SMV/10 (hereinafter, RESOLUTION), PANDERO EAFC was sanctioned with a fine of 3 UIT, for having committed one (01) serious infringement typified in Annex XIV, item 2, subsection 2.45¹ of the Sanctions Regulation, approved by CONASEV Resolution No. 055-2001-EF/94.10 and its amendments (hereinafter, SANCTIONS REGULATION), for failing to comply with the conduct norms established in the Regulation of the Collective Fund System and its Administrating Companies, approved by SMV Resolution No. 020-2014-SMV/01 (hereinafter, REGULATION);

That, with a document presented on July 20, 2022, PANDERO EAFC filed an appeal against the RESOLUTION;

That, through Report No. 1773-2024-SMV/06 (hereinafter, REPORT), the Legal Advisory Office issued an opinion on the arguments contained in its appeal, which was made available to PANDERO EAFC through Office No. 32-2025-SMV/14;

That, on January 10, 2025, PANDERO EAFC presented a statement of arguments (hereinafter, ARGUMENTS) requesting that the appealed resolution be revoked and the administrative file be archived;

I. ANALYSIS OF THE ADMISSIBILITY OF THE APPEAL

That, from the evaluation carried out, it has been verified that the appeal filed by PANDERO EAFC meets the requirements

¹ "2.45. Not implement or implement incompletely or infringe the conduct norms of the administrator company"

established in articles 113², 211³ and has been presented within the period provided for in article 207⁴ of Law No. 27444, General Administrative Procedure Law (hereinafter, LPAG);

II. ARGUMENTS OF THE APPEAL AND STATEMENTS OF ARGUMENTS

That, below, the arguments contained in the appeal and ARGUMENTS presented by PANDERO EAFC are exposed succinctly:

That, PANDERO EAFC maintains that on February 07, 2018, the Inaugural Assembly corresponding to Group No. 5130 (hereinafter, GROUP) was held, indicating that failures occurred in its systems during its development, as it did not visualize the information of the auctions entered via App, for which reason the results of the assembly did not reflect the real beneficiaries of the adjudications, seeing the need to restart said assembly from the auction station;

That, PANDERO EAFC refers that through a letter dated February 09, 2018, acting in good faith and in order not to prejudice its adjudicated associates, it informed the Securities Market Superintendence (SMV) that it would respect the 3 adjudications of February 07, 2018, corresponding to Associates ASSOCIATE 1 (5130-176-13), ASSOCIATE 2 (5130-206-27) and ASSOCIATE 3 (5130-020-12)⁵;

That, it states that through RESOLUTION it is attributed to having committed a serious infringement, in accordance with what is established in Annex XIV, item 2, subsection 2.45 of the SANCTIONS REGULATION: "Not

² "Article 113.- Requirements of the documents Any document presented before any entity must contain the following:

Full names, address and National Identity Document number or foreigner's ID card of the administrator, and if applicable, the quality of representative and of the person whom he represents.
The concrete expression of what is requested, the grounds of fact that support it and, when possible, the grounds of law.
Place, date, signature or digital fingerprint, in case of not knowing how to sign or being impeded.
The indication of the body, the entity or the authority to which it is addressed, understood as such, as far as possible, to the authority of the degree closest to the user, according to the hierarchy, with competence to know and resolve it.
The address of the place where notifications of the procedure are desired to be received, when it is different from the real address exposed by virtue of numeral 1. This designation of address produces its effects from its indication and is presumed subsistent, unless its change is expressly communicated.
The relationship of the documents and attachments that accompany, indicated in the TUPA.
The identification of the file or the matter, in the case of already initiated procedures."
The reference of this article in the TUO of the LPAG is located in Article 124.
³ "Article 211.- Requirements of the appeal
The document of the appeal must indicate the act from which the appeal is made and will comply with the other requirements provided for in article 124."
In the TUO of the LPAG it is located in Article 221.
⁴ "Article 207. Administrative resources
218.1 The administrative resources are:
a) Recurso de reconsideración b) Recurso de apelación Only in case that by law or legislative decree it is expressly established, the interposition of the administrative resource of revision is possible.
207.2 The term for the interposition of the resources is of fifteen (15) peremptory days, and they must be resolved in the period of thirty (30) days with the exception of the recurso de reconsideración that is resolved in the period of fifteen (15) days. Exceptionally, in the administrative procedures of single instance of competence of the directing councils of the regulatory bodies, the recurso de reconsideración is resolved in the period of thirty (30) days."
In the TUO of the LPAG it is located in article 218.
⁵ See ANNEX - DENOMINATIONS

implement or implement incompletely or infringe the conduct norms of the administrator company";

That, it also refers in its appeal and subsequently in its ARGUMENTS, that it provided financing⁶ to the associates with contract numbers 5130-206-27 and 5130-176-13, who presented their proposal via the associates App, in the inaugural assembly dated February 07, 2018, as detailed below:

Contract	Associate	Quotas	C. Capital (US$)	C. Adm. (US$)	Total Financed
5130-206-27	ASSOCIATE 2	40	8,718.00	1,851.60	10,569.60
5130-176-13	ASSOCIATE 1	20	6,102.60	1,296.20	7,398.80

That, the appellant refers that each of the adjudicated associates signed an Agreement, dated March 14, 2018, whose object is detailed below:

AGREEMENT SIGNED C.C. 5130-206-27
OBJECT OF THE AGREEMENT
FOURTH: THE PARTIES MAKING RECIPROCAL CONCESSIONS AND BACKED BY ARTICLE 1302, 1303, 1304 AND 1305 OF THE CIVIL CODE AND ARTICLES 335 AND 337 OF THE CIVIL PROCEDURAL CODE, AND OTHER RELEVANT LEGAL NORMS, AGREE AS FOLLOWS:
PANDERO WILL FINANCE THE ASSOCIATE THE OFFER OF 40 QUOTAS, AMOUNTING TO US$ 10,569.60, WHICH WILL BE PRESENTED AT THE ASSEMBLY OF ASSOCIATES THAT WILL BE HELD ON MARCH 15, 2018.
ONCE THE PURCHASE CERTIFICATE IS OBTAINED, THE ASSOCIATE WILL COMPLY WITH THE OBLIGATIONS ESTABLISHED IN THE COLLECTIVE CONTRACT SIGNED FOR THE ADJUDICATED ASSOCIATES WHO APPLY THE CERTIFICATE IN THE ACQUISITION OF A NEW VEHICLE. IT SHOULD BE NOTED THAT THE ASSOCIATE WILL CONTINUE TO PAY THE AMOUNT OF US$ 264.24 CORRESPONDING TO ITS TOTAL MONTHLY QUOTA INCLUDED THE FINANCING, PLUS THE AMOUNT OF THE VEHICLE INSURANCE.

AGREEMENT SIGNED C.C. 5130-176-13
OBJECT OF THE AGREEMENT
FOURTH: THE PARTIES MAKING RECIPROCAL CONCESSIONS AND BACKED BY ARTICLE 1302, 1303, 1304 AND 1305 OF THE CIVIL CODE AND ARTICLES 335 AND 337 OF THE CIVIL PROCEDURAL CODE, AND OTHER RELEVANT LEGAL NORMS, AGREE AS FOLLOWS:

PANDERO WILL FINANCE THE ASSOCIATE THE OFFER OF 20 QUOTAS, AMOUNTING TO US$ 7,398.80, WHICH WILL BE PRESENTED AT THE ASSEMBLY OF ASSOCIATES THAT WILL BE HELD ON MARCH 15, 2018.
ONCE THE PURCHASE CERTIFICATE IS OBTAINED, THE ASSOCIATE WILL COMPLY WITH THE OBLIGATIONS ESTABLISHED IN THE COLLECTIVE CONTRACT SIGNED FOR THE ADJUDICATED ASSOCIATES WHO APPLY THE CERTIFICATE IN THE ACQUISITION OF A NEW VEHICLE. IT SHOULD BE NOTED THAT THE ASSOCIATE WILL CONTINUE TO PAY THE AMOUNT OF US$ 272.60 CORRESPONDING TO ITS TOTAL MONTHLY QUOTA INCLUDED THE FINANCING, PLUS THE AMOUNT OF THE VEHICLE INSURANCE.

That, in relation to this, the appellant states that it carried out these financings as "Company and not as Administrator", that is, with its own resources and not with money from the funds it administers, for the amount of the quotas offered by each of the

⁶ Pandero EAFC refers that ASSOCIATE 3 with CC 5130-020-12, was adjudicated in the Assembly of February 09, therefore it was not necessary to provide financing.

associates in their inaugural assembly and not for 100% of the value of their purchase certificates as incorrectly indicated in the OFFICE OF CHARGES, with which PANDERO EAFC refers that the Adjunct Superintendence of Prudential Supervision could have imposed an Admonition, since it is not a repetitive conduct on its part;

That, PANDERO EAFC states that it is important to take into consideration that the money that was destined for the financing of the auction offers of the associates in question comes from the Pandero Company account, that is, it did not affect the money corresponding to the Collective Fund, as can be seen in Annex 1 that the appellant attaches in the document;

That, it also maintains that the General Intendancy of Prudential Compliance (hereinafter, IGCP) has taken action ex officio in this procedure on February 07, 2022, despite PANDERO EAFC informing of what happened in the GROUP Assembly, on February 09, 2018, that is, 4 years after the fact occurred, when the alleged infringement would have already prescribed, for which it is necessary that the SMV rule on this matter; therefore, it requests to have the appeal filed, revoke the RESOLUTION and order the archiving of the present file;

That, additionally, it states that it does not agree with the statement regarding having intervened in the adjudication process by auction, since every administrator is prohibited from participating in the adjudication processes and that PANDERO EAFC has always been respectful of this provision; likewise, it maintains that in the results of said assembly those clients who presented a higher auction proposal were adjudicated, without there having been any direct, arbitrary or tendentious action;

That, in that sense, PANDERO EAFC refers that the intention when signing the agreements was never to put the other associates at a disadvantage, much less give unequal treatment, it also states that the statements about the alleged affectation to the normal process of auctions and adjudications are not true, since all auctions presented were received, adjudicating the largest proposals, as established by the REGULATION;

That, PANDERO EAFC reiterates in its ARGUMENTS that the agreements signed were due to the inconvenience that occurred in the inaugural assembly, with the sole purpose of respecting the adjudication that by right those people had won and that if they had not signed the agreements with the associates, they would have been prejudiced, a situation that would not have been fair, since they were not responsible for the problems that occurred in the assembly; therefore, the conduct described above has in no way affected the collective fund system, since in general the entire auction process described in clause 7.3 of the collective fund contract and article 110 of the REGULATION, developed normally without any interference from PANDERO EAFC, acting in good faith, and therefore, there is no breach of numerals 6.1 and 6.5 of its Conduct Norms;

That, finally, it maintains that at all times it sought to provide support and an immediate solution to its adjudicated associates fairly on the first date of the inaugural assembly, and furthermore, from the development of the group's validity there have been no complaints and/or reports related to these facts; therefore, the conduct described above must be taken into account, which would constitute a mitigating factor to the alleged infringement of the SANCTIONS REGULATION, with which in any case, PANDERO EAFC refers that an Admonition could have been imposed and not a fine of 3 UIT, since it is not a repetitive conduct, it did not intervene in the auction adjudication process and it did not affect the collective fund system;

III. EVALUATION OF THE ARGUMENTS EXPOSED

REGARDING FINANCING TO THE ASSOCIATES

That, in relation to PANDERO EAFC's argument that it provided, with its own resources and not with money from the funds it administers, financing to the associates with contracts No. 5130-206-27 and 5130-176-13 and that it was incorrectly indicated in the OFFICE OF CHARGES that the financing was for one hundred percent (100%) of the value of the purchase certificates; regarding this, we must indicate that this statement is not exact;

That, with respect to this, it has been verified that in numeral 5 of section I of the OFFICE OF CHARGES, the instructing body indicated the following:

"5. "Likewise, it is appreciated that PANDERO EAFC did not finance one hundred percent (100%) of the value of the purchase certificates of [ASSOCIATE 1] and [ASSOCIATE 2] but that the collective fund system contributed USD 19,876.80 (Nineteen thousand eight hundred seventy-six and 80/100 United States dollars). The detail is shown in Table No. 4." Emphasis added

That, from the above, it is corroborated that, in line with what is stated in the OFFICE OF CHARGES, PANDERO EAFC did not finance one hundred percent (100%) of the value of the purchase certificates of both associates and, therefore, there is no error alleged by the referred administrator company;

That, in relation to this, it must be taken into account that it is observed that for the adjudication of the purchase certificates of both associates, the collective fund contributed the amount of USD 19,876.80 US dollars, and PANDERO EAFC financed the amount of USD 14,820.60 US dollars, according to the following table:

Contributions of associates, Pandero EAFC and the system to obtain the value of the certificate (Figures in US dollars)

Contract No.	Associate	Own	PANDERO EAFC	System	Certificate Amount
5130-176-13	ASSOCIATE 1	6,102.60	6,102.60	11,594.80	23,800.00
5130-206-27	ASSOCIATE 2	0.00	8,718.00	8,282.00	17,000.00
TOTAL		6,102.60	14,820.60	19,876.80	40,800.00

That, without prejudice to the above, from the review of the dollar account statement of PANDERO EAFC presented by the appellant, two amounts dated April 19, 2018 are verified, for the amount of USD 17,968.49; figure that coincides with the sum of the amounts agreed with ASSOCIATE 1 and ASSOCIATE 2 in their respective agreements:

That, however, on March 15, 2018, both associates adjudicated a purchase certificate with forty (40) quotas, respectively, according to the following table:

Auction proposal in the second assembly of the Group of March 15, 2018 (Figures in US dollars)

Contract No.	Associate	Proposal	Auction	System	Certificate Amount
5130-176-13	ASSOCIATE 1 (*)	Auction (40)	12,205.20	11,594.80	23,800.00
5130-206-27	ASSOCIATE 2 (*)	Auction (40)	8,718.00	8,282.00	17,000.00
	Adjudicated 3	Auction (38)	8,282.10	8,717.90	17,000.00
	Adjudicated 4	Auction (35)	11,666.55	14,333.45	26,000.00

(*) Associates who adjudicated as a result of PANDERO EAFC financing.

That, therefore, what is stated by PANDERO EAFC, in its appeal and ARGUMENTS, regarding not having intervened in the adjudication process, is not exact, since according to what was expressed above, it did interfere in the adjudication procedure by auction, affecting, this situation, to the remaining 161 able associates of the GROUP who could have had the benefit of having financing to auction a high number of quotas and be adjudicated;

That, this evidenced unequal treatment among the associates of the GROUP and, therefore, an affectation to the normal process of auctions and adjudications;

That, it must be taken into account that PANDERO EAFC is obliged to comply with its conduct norms, according to article 48 of the REGULATION, which specifies the following:

"Article 48.- Conduct Norms
In the development of its activities, the Administrator, its directors, managers, officials, dependents and salespeople, must comply with the following general conduct norms:
a) Equity.- Grant equal treatment to associates in the administration of Collective Funds, acting impartially, providing them with the same conditions and opportunities, and avoiding any act, conduct, practice or omission that may be beneficial or prejudicial to some Associates.
(...)"

e) Honesty, Care and Diligence.- Perform its activities with honesty, as well as with the care and diligence due in the best interest of the Collective Fund and its Associates, avoiding acts that may deteriorate their confidence."

That, likewise, PANDERO EAFC is obliged to comply with its conduct norms, which establish the following:

"6. Conduct Norms
In the development of its collective fund administration activities, the company, its directors, managers, officials and workers in general, as well as external personnel who perform representation tasks for the Company, must comply obligatorily with the following general conduct norms:
6.1 Equity.- Grant equal treatment to associates in the administration of Collective Funds, acting impartially, providing them with the same conditions and opportunities, and avoiding any act, conduct, practice or omission that may be beneficial or prejudicial to some Associates.
(...)
6.5 Honesty, Care and Diligence.- Perform the business activities with honesty, as well as with the care and diligence due in the best interest of the Collective Fund and of its Associates, avoiding acts that may deteriorate their confidence.
(...)"

That, PANDERO EAFC's conduct in the assembly of March 15, 2018, evidenced unequal treatment to its associates and a violation of article 48 of the REGULATION and its conduct norms established in numeral 6, subsections 6.1 and 6.5, incurring in the infringement typified as a serious offense in Annex XIV, item 2, subsection 2.45 of the SANCTIONS REGULATION, which states as a serious infringement: "Not implement or implement incompletely or infringe the conduct norms of the administrator company"

That, therefore this office considers that PANDERO EAFC interfered in the adjudication procedure and did not observe article 48 of the REGULATION, as well as its conduct norms; this regardless of whether it followed the auction procedure contemplated in article 110 of the REGULATION and in clause 7.3 of the collective fund contract;

That, on the other hand, regarding PANDERO EAFC's statement regarding that in the present case a "admonition" sanction would correspond, it must be noted that although it has been verified that this administrator sought to provide a solution immediately to its associates and that there would not have been complaints and/or reports related to the facts, the nature of the infringement, which is classified as serious, sanctionable with a fine not less than twenty-five (25) and up to fifty (50) Tax Units (UIT), should not be overlooked;

That, the circumstances alleged by the appellant, as well as the fact that it did not act with intent in the commission of the infringement and the contribution of the administrator company in the clarification of the facts, were weighed by the instructing body and the sanctioning body, which explains that the imposed fine has been 3 UIT, it not corresponding to the criterion of this office, a reduction of said sanction;

REGARDING THE INVOKED PRESCRIPTION

That, PANDERO EAFC states that it must be taken into consideration that the IGCP has taken action ex officio in this procedure on February 07, 2022, despite the appellant informing of what happened in the GROUP Assembly on February 09, 2018, that is, four (4) years after the fact occurred, when said alleged infringement had already prescribed;

That, in accordance with numeral 233.1 of article 233 of the LPAG, the authority's faculty to determine the existence of administrative infractions prescribes in the period established by special laws and in case it had not been determined, it will prescribe in four (4) years; period that is collected in the first paragraph of article 42⁷ of the current Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01;

That, it should be noted, that the SMV in previous pronouncements⁸ has distinguished between instantaneous infringements with permanent effects and permanent infringements, being that in the first of them the computation of the infringement begins to be counted from when the infringement was made without prejudice to the fact that its effects remain in time:

"In these cases, the infringement produces a state of things contrary to the legal order, which is maintained. This is the case, for example, of the installation of fences on the public road against what is provided by a municipal ordinance or construction without a license. In these cases, although the effects of the infringing conduct are lasting and remain in time, the consummation of this is instantaneous, so it is from this moment that the prescription period of the infringement must be counted"⁹

That, the infringement committed by PANDERO EAFC is an instantaneous infringement with permanent effects and, therefore, according to numeral 233.2 of article 233 of the LPAG¹⁰, the computation of the prescription period of the faculty to determine the existence of infringements began from the day the infringement was committed, that is, March 15, 2018;

⁷ "Article 42.- Prescription of the sanctioning faculty The faculty to determine the existence of administrative infractions and to impose the corresponding sanctions prescribes:

In the terms established by the special laws.
In the absence of special regulation, in four (4) years for serious infractions and in two (2) years for minor infractions.
The prescription period begins to run from the day the infringement was committed. In the case of continuous or permanent infringements, it begins to run from the day the conduct ceased.
The prescription period is interrupted by the initiation of the administrative procedure for the determination of the infringement and the notification of the charges to the interested party."
⁸ See SMV pronouncements on prescription.
⁹ SMV Pronouncement No. 001-2018-SMV/02.
¹⁰ "Article 233. Prescription of the faculty to determine the existence of administrative infractions
233.1 The faculty to determine the existence of administrative infractions prescribes in the terms established by the special laws. In the absence of special regulation, it prescribes in four (4) years.
233.2 The prescription period begins to run from the day the infringement was committed. In the case of continuous or permanent infringements, it begins to run from the day the conduct ceased."
In the TUO of the LPAG it is located in article 245.

7 Article 42.- PRESCRIPTION
The authority to determine the existence of administrative infractions prescribes after four (4) years.
8 Superintendent Resolution No. 058-2016-SMV/02 9 Superintendency of the Securities Market (2016) Superintendent Resolution No. 058-2016-SMV/02 of April 20, 2016, considering 22, p.4 10 "Article 233. Prescription (...)
233.2 The computation of the prescription period for the authority to determine the existence of infractions shall begin from the day the infraction was committed in the case of instantaneous infractions or instantaneous infractions with permanent effects, from the day the last constitutive action of the infraction was carried out in the case of continued infractions, or from the day the infraction ceased in the case of permanent infractions."

That, considering the suspension period established in Article 2811 of Urgency Decree No. 029-2020, issued in the context of the health emergency caused by COVID 19, in addition to the suspension periods established in the second paragraph of numeral 233.212 of Article 233 of the LPAG, this infraction has not prescribed;

In that sense, it corresponds to dismiss what was alleged by PANDERO EAFC regarding the alleged prescription, as well as its other arguments which have been analyzed in the preceding considerations; and,

Being subject to 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 1º.- Declare unfounded the appeal filed by Pandero S.A. EAFC against Adjunct Superintendent Resolution SMV No. 006-2022-SMV/10.

Article 2º.- Declare the administrative route exhausted.

Article 3º.- Transcribe this resolution to Pandero S.A. EAFC

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

Zosimo Juan Pichihua Serna
Superintendent of the Securities Market

11 "Article 28.- Declare the suspension for thirty (30) business days counted from the day following the publication of this Urgency Decree, of the computation of the start and processing periods of administrative procedures and procedures of any kind, even those regulated by laws and special provisions, that are subject to a period, that are processed in entities of the Public Sector, and that are not included in the scope of the Second Complementary Final Provision of Urgency Decree No. 026-2020; including those that are in process upon the entry into force of this Urgency Decree." 12 "Article 233. Prescription (...) The computation of the prescription period is only suspended with the initiation of the sanctioning procedure through the notification to the administrative party of the facts constitutive of the infraction that are imputed to them as charges, in accordance with what is established in Article 235, item 3 of this Law. This computation must be resumed immediately if the processing of the sanctioning procedure remains paralyzed for more than twenty-five (25) business days, for a cause not attributable to the administrative party."

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