PERÚ Ministerio de Economía y Finanzas
SMV
Superintendencia del Mercado de Valores

“Decade of Equal Opportunities for Women and Men” "Year of the Bicentennial, of the consolidation of our Independence, and of the commemoration of the heroic battles of Junín and Ayacucho"

Superintendent Resolution No. 023-2024-SMV/02

Lima, 7 March 2024

The Superintendent of the Securities Market

WHEREAS:

File No. 2022042867 and Report No. 227-2024-SMV/06 issued by the Legal Advisory Office;

CONSIDERING:

That, by Deputy Superintendent Resolution SMV No. 052-2023-SMV/10, hereinafter, RESOLUTION, the Deputy Superintendency of Prudential Supervision, hereinafter SASP resolved:

(i) Declare that Autoplan Empresa Administradora de Fondos Colectivos S.A. (AUTOPLAN) has incurred one (1) infraction classified as serious as established in Annex XIII, numeral 2, subsection 2.16 of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01 (hereinafter, SANCTIONS REGULATION), for having failed to comply with the provisions of the collective funds administration contract regarding having the contract terminated on the date the member requested it.

(ii) Declare that AUTOPLAN has incurred one (1) infraction classified as serious as established in Annex XIII, numeral 2, subsection 2.16 of the SANCTIONS REGULATION, for having failed to comply with the collective funds administration contract regarding the legal term established to provide a response to claims.

(iii) Sanction AUTOPLAN with a fine of 2 UIT in force at the time of effective payment of the fine for the commission of the infractions.

That, by brief presented on 15 August 2023, AUTOPLAN filed an appeal against THE RESOLUTION;

That, by Report No. 227-2024-SMV/06 of 20 February 2024, hereinafter, the REPORT, the Legal Advisory Office issued an opinion on the appeal filed by AUTOPLAN. Said report was brought to the attention of AUTOPLAN by Official Letter No. 709-2024-SMV/14 of 23 February 2024, so that, if it deems appropriate, it may submit its arguments which, to date, have not been submitted;

I. ARGUMENTS OF THE APPEAL

That, below, the arguments contained in the appeal filed by AUTOPLAN are succinctly set forth;

A. It reiterates that it acknowledged responsibility regarding the charges imputed in the present administrative sanctioning procedure; consequently,

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requests that the mitigating factor of literal a) of article 26 of the SANCTIONS REGULATION1 be applied.

B. In addition to the aforementioned mitigating factor, it states that it considers itself to be in the case of literal c) of article 26 of the SANCTIONS REGULATION2, taking into consideration that it proceeded to fully remedy the conduct under discussion, consisting of: (i) having the contract terminated and (ii) providing a response to the claims referred to in the present administrative sanctioning procedure, presented on 4 and 5 October 2021.

C. Finally, it specifies that the fine imposed by the SASP must be mitigated by at least 30%.

II. ANALYSIS OF THE ADMISSIBILITY OF THE APPEAL

That, from the evaluation carried out, it has been verified that the appeal filed by AUTOPLAN complies with the requirements established in articles 124, 220 and 221 of the Single Ordered Text of Law No. 27444, General Administrative Procedure Law (hereinafter, TUO LPAG);

That, in that sense, in the case analyzed it is verified that the filing of the appeal by AUTOPLAN was made within the legal term, complying with the provisions of article 218 of the TUO LPAG;

III. EVALUATION OF THE ARGUMENTS SET FORTH BY AUTOPLAN

A. AUTOPLAN reiterates that the mitigating factor provided in literal a) of article 26 of the SANCTIONS REGULATION previously mentioned should be applied.

In this regard, it must be specified that from the reading of the RESOLUTION, it is verified that said acknowledgment was considered in the evaluation of the determination of administrative responsibility as recorded in the following recitals of the RESOLUTION:

“67. With regard to the voluntary declaration of the commission of the infraction and the contribution of the offender to its clarification, established in article 257, numeral 2, literal a) of the TUO of the LPAG and in article 26, literals a) and b) of the Sanctions Regulation, it must be noted that Autoplan EAFC has acknowledged its responsibility for the infractions incurred expressly and in writing, within the term granted for the presentation of defenses, and in a precise, concise, clear and unconditional manner, without

[1] Article 26.- MITIGATING FACTORS OF RESPONSIBILITY The following constitute mitigating conditions of responsibility for infractions: a) Acknowledgment of responsibility by the offender expressly and in writing, once the administrative sanctioning procedure has begun. When the applicable sanction is a fine, it is reduced, taking into account the following: 1. If the acknowledgment of the infraction is presented within the term granted for the presentation of defenses, the reduction amount shall be fifty percent (50%). (…) The acknowledgment of responsibility regarding an infraction must be made in a precise, concise, clear, express and unconditional manner, and must not contain ambiguous or contradictory expressions; otherwise, it shall not be understood as an acknowledgment. If defenses are presented, despite having made an acknowledgment of responsibility, it shall be understood as a non-acknowledgment, and the authority shall proceed to evaluate the defenses”.

[2] Article 26.- MITIGATING CIRCUMSTANCES OF LIABILITY The following constitute mitigating conditions of liability for infractions: (…) c) The rectification made after the requirement or the initiation of the administrative sanctioning procedure.

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ambiguous or contradictory expressions, as well as has contributed to clarifying them;

68. On the other hand, it is not observed that in the present case any of the assumptions that constitute exempting conditions of liability indicated in article 27° of the Regulation of Sanctions has been configured;

69. From the foregoing, it is concluded that Autoplan EAFC has incurred in the commission of two (2) infractions classified as serious in Annex XIII, numeral 2, subsection 2.16 of the Regulation of Sanctions, for which it corresponds to impose on Autoplan EAFC a sanction corresponding to infractions classified as serious in accordance with article 38° of the Regulation of Sanctions; therefore, it would correspond to apply a fine greater than 25 UIT and up to 50 UIT; however, to the extent that Autoplan EAFC has acknowledged the commission of the two (2) infractions, detailed above, and has contributed to clarifying them; it corresponds to apply the provisions of article 26°3, literals a), numeral 1) and b) of the Regulation of Sanctions), so the fine for said infractions must fluctuate between 12.5 UIT and 25 UIT; that is, 50% of the range established for serious infractions”;

In that sense, it has been verified that the RESOLUTION evaluated and applied the mitigating circumstance of liability alleged by AUTOPLAN, which is provided in literal a) of article 26 of the REGULATION OF SANCTIONS.

B. AUTOPLAN states as a new argument that the mitigating circumstance provided in literal c) of article 26 of the REGULATION OF SANCTIONS should be applied, the same that establishes the following:

“Article 26.- MITIGATING CIRCUMSTANCES OF LIABILITY

The following constitute mitigating conditions of liability for infractions:

(…)

c) The rectification made after the requirement or the initiation of the administrative sanctioning procedure”. (Underline added)

Regarding what was alleged by AUTOPLAN, it should be noted that, through the RESOLUTION, the SASP applied a sanction corresponding to a classification

[3] Article 26.- MITIGATING CIRCUMSTANCES OF LIABILITY The following constitute mitigating conditions of liability for infractions: a) Acknowledgment of responsibility of the offender expressly and in writing, once the administrative sanctioning procedure has begun. When the applicable sanction is a fine, it is reduced, taking into account the following: 1. If the acknowledgment of the infraction is presented within the term granted for the presentation of defenses, the reduction amount will be fifty percent (50%). (…) The acknowledgment of responsibility regarding an infraction must be made precisely, concisely, clearly, expressly and unconditionally, and must not contain ambiguous or contradictory expressions; otherwise, it will not be understood as an acknowledgment. If defenses are presented, despite having made an acknowledgment of responsibility, it will be understood as the rectification made after the requirement or the initiation of the administrative sanctioning procedure”. a non-acknowledgment, and the authority proceeds to evaluate the defenses”.

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The integrity of the document and the authorship of the( s) si gnature( s) can be verified at https://apps.fi rmaperu.gob.pe/web/validador.xhtml

Electronic document di gitally signed under the framework of Law No. 27269, Law of Di gital Signatures and Certificates, its Regulation and amendments.
The integrity of the document and the authorship of the( s) si gnature( s) can be verified at https://apps.fi rmaperu.gob.pe/web/validador.xhtml

lower than that provided for serious infractions by virtue of article 25 of the REGULATION OF SANCTIONS4 .

Likewise, it is necessary to specify that, through the RESOLUTION, a fine of two (02) UIT was imposed on AUTOPLAN for having incurred in two (2) serious infractions typified in Annex XIII, numeral 2, subsection 2.16 of the Regulation of Sanctions, (i) for not complying with the provisions of the collective fund administration contract entered into with the associate and (ii) for not having complied with resolving a contract on the requested date and not having attended to the claims within the legal term.

Now then, in accordance with article 29 of the REGULATION OF SANCTIONS5 , a serious infraction is punishable with a fine greater than twenty-five (25) and up to fifty (50) Tax Units (UIT) or with the prohibition of the formation of new groups; that is, in the hypothetical case of having imposed a sanction with the minimum amount, it would correspond to impose on AUTOPLAN a sanction amounting to 25 UIT for each infraction; that is, 50 UIT for the two serious infractions subject to charges.

However, in the present sanctioning procedure, the SASP, in application of the principle of reasonableness contemplated in article 248, numeral 3 of the TUO DE LA LPAG, which states that sanctions must be proportional to the non-compliances classified as infractions, imposed a sanction corresponding to a classification lower than that provided for serious infractions, in accordance with the provisions of article 29 of the SANCTIONS REGULATION.

That is, a fine corresponding to minor infractions was applied, which corresponds to an amount no less than one (1) UIT nor greater than twenty-five (25) UIT in accordance with article 30 of the SANCTIONS REGULATION6 .

That, according to what has been developed and analyzed, it is considered that AUTOPLAN has not provided sufficient evidence to rebut the decision of the SASP, which is justified and duly motivated in the development of the RESOLUTION, because it is noted from the same, that the grounds leading to the conclusion that AUTOPLAN incurred in the non-compliances imputed as charges in the present administrative sanctioning procedure have been validated, facts that have also been expressly acknowledged by the administered; and,

[4] Article 25.- SANCTION CRITERIA (…) When, from the evaluation of the aforementioned criteria, it is noted that there is no proportionality between the sanction to be imposed and the imputed facts, by exception and by reasoned resolution, a sanction corresponding to a lower classification than that provided may be imposed.

[5] Article 29.- SANCTIONS FOR SERIOUS INFRACTIONS-For the commission of serious infractions, one of the following sanctions is imposed on the offender: a) Fine greater than twenty-five (25) UIT and up to fifty (50) UIT; and, b) Prohibition of the formation of new groups.

[6] Article 30.- SANCTIONS FOR MINOR INFRACTIONS For the commission of minor infractions, one of the following sanctions is imposed on the offender: a) Warning; or, b) Fine no less than one (1) UIT nor greater than twenty-five (25) UIT;

In accordance with the provisions of numeral 26 of article 12 of the Regulation of Organization and Functions of the SMV, approved by Supreme Decree No. 216-2011-EF;

RESOLVES:

Article 1.- Declare unfounded the appeal filed by Autoplan Empresa Administradora de Fondos Colectivos S.A. against the Resolution of the Deputy Superintendence SMV No. 052-2023-SMV/10.

Article 2.- Consider the administrative route exhausted.

Article 3.- Transcribe this resolution to Autoplan Empresa Administradora de Fondos Colectivos S.A.

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

Register, communicate and publish.

Lorena Masías Quiroga
Superintendent of the Securities Market

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