PERU Ministry of Economy and Finance
SMV
Superintendency of the Market in Securities

"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. 036-2024-SMV/02

Lima, 1 April 2024

The Superintendent of the Market in Securities

WHEREAS:

File No. 2023019136 and Report No. 307-2024-SMV/06 issued by the Legal Advisory Office;

CONSIDERING:

That, by Deputy Superintendent Resolution SMV No. 004-2024-SMV/10, hereinafter, RESOLUTION, the Deputy Superintendency of Prudential Supervision, hereinafter SASP, resolved to sanction Autoplan Empresa Administradora de Fondos Colectivos S.A. (AUTOPLAN) with a fine of six (06) UIT for failing to comply with the provisions of the collective funds administration contract entered into with the associate related to: i) the term to make the return of contributions in favor of the associate at the end of their group in the liquidation stage, ii) to provide timely response to the claims filed by the associate, and iii) to timely send the payment receipts to the associate; and, one (1) minor offense classified in Annex XIII, numeral 3, subparagraphs 3.7 of the Sanctions Regulation approved by SMV Resolution No. 035-2018-SMV/01 (hereinafter, SANCTIONS REGULATION), for failing to timely send to the associates the information on the account statements.

That, by written submission presented on 27 February 2024, AUTOPLAN filed an appeal against THE RESOLUTION;

That, with Report No. 307-2024-SMV/06 of 07 March 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. 966-2024-SMV/14 of 08 March 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, it requests that the mitigating circumstance of literal a) of article 26 of the SANCTIONS REGULATION1 be applied.

[1] Article 26.- MITIGATING CIRCUMSTANCES OF RESPONSIBILITY The following constitute mitigating circumstances 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 submission of defenses, the reduction amount shall be fifty percent (50%).

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B. Additionally to the indicated mitigating circumstance, the appellant states, it finds itself in the assumption of literal b) of article 26 of the SANCTIONS REGULATION2, taking into consideration that it contributed to the clarification of the infraction.

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 analyzed case 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 circumstance 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 a reading of the RESOLUTION, it is verified that said acknowledgment was assessed by the first instance in the evaluation of administrative responsibility as stated in the following CONSIDERATIONS of the RESOLUTION, which are cited:

130. With regard to the voluntary declaration of the commission of the infraction, the contribution of the offender to its clarification and the correction made after its requirement, established in article 257, numeral 2, subparagraphs a) and b) of the TUO of the LPAG and in article 26, literals a), b) and c) of the SANCTIONS REGULATION, it must be noted that AUTOPLAN EAFC has acknowledged its responsibility for the infraction incurred expressly and in writing, within the term granted for the submission of defenses, in a precise, concise, clear, express and unconditional manner, without ambiguous or contradictory expressions, as well as it has not hindered their clarification; (Underline and highlight added)

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

B. AUTOPLAN also reiterates that the mitigating circumstance provided in literal b) of article 26 of the SANCTIONS REGULATION should be applied, which establishes the following:

"Article 26.- MITIGATING CIRCUMSTANCES OF RESPONSIBILITY The following constitute mitigating circumstances of responsibility for infractions:

[2] (…) 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 submitted, despite having made an acknowledgment of responsibility, it will be understood as a non-acknowledgment, and the authority shall proceed to evaluate the defenses.” 2 Article 26.- MITIGATING CIRCUMSTANCES OF RESPONSIBILITY The following constitute mitigating circumstances of responsibility for infractions: (…) b) Contribution of the offender to the clarification of the infraction.

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PERÚ Ministry of Economy and Finance
SMV
Superintendency of the Market of Securities
“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"

(…) b) Contribution of the offender to the clarification of the infraction.”. In this regard, it must be specified that from a review of the RESOLUTION, it is verified that said mitigating circumstance was also considered in the evaluation of the determination of administrative responsibility as stated in the following Consideration of the RESOLUTION, which is cited: 130. With regard to the voluntary declaration of the commission of the infraction, the contribution of the offender to its clarification and the correction made after its requirement, established in article 257°, numeral 2, subparagraph a) and b) of the TUO of the LPAG and in article 26°, literals a), b) and c) of the SANCTIONS REGULATION, it must be noted that AUTOPLAN EAFC has acknowledged its responsibility for the infraction incurred expressly and in writing, within the term granted for the submission of defenses, precisely, concisely, clearly, expressly and unconditionally, without ambiguous or contradictory expressions, and has not hindered their clarification; (Underline and highlight added)

Consequently, it has been verified that the RESOLUTION also evaluated and applied the mitigating circumstance of responsibility alleged by AUTOPLAN, which is provided for in literal b) of article 26 of the SANCTIONS REGULATION.

C. On the other hand, it is noted that the SASP through the RESOLUTION applied a sanction corresponding to a lower classification than that provided for serious infractions by virtue of article 25 of the SANCTIONS REGULATION3 .

Indeed, through the RESOLUTION, a fine of six (06) UIT was imposed on AUTOPLAN for having incurred four (04) infractions: three (3) serious typified in Annex XIII, numeral 2, subparagraph 2.16; and, one (1) minor typified in Annex XIII, numeral 3, subparagraphs 3.7 of the SANCTIONS REGULATION. Now then, pursuant to article 29 of the SANCTIONS REGULATION4, a serious infringement is punishable by a fine of more than twenty-five (25) and up to fifty (50) Tax Units (UIT) or by the prohibition of the formation of new groups; that is, in the hypothetical case of a sanction having been imposed with the minimum amount, a sanction amounting to 25 UIT would have to be imposed on AUTOPLAN for the serious infringement under charge.

However, in the present sanctioning proceeding, the SASP, applying the principle of reasonableness set forth in article 248, numeral 3 of the TUO OF THE LPAG, which states that sanctions must be proportionate to the non-compliance classified as infringements, imposed a sanction corresponding to a classification lower than that provided for in the

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

[4] Article 29.- SANCTIONS FOR SERIOUS INFRINGEMENTS - For the commission of serious infringements, the following sanctions shall be imposed on the offender: a) A fine of more than twenty-five (25) UIT and up to fifty (50) UIT; and, b) Prohibition of the formation of new groups.

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serious infringements, in accordance with what is stated in 29 of the SANCTIONS REGULATION.

That is, a fine corresponding to a minor infringement was applied, which corresponds to an amount not less than one (1) UIT nor more than twenty-five (25) UIT pursuant to article 30 of the SANCTIONS REGULATION5.

That, in accordance with what has been developed and analyzed above, it can be maintained that the RESOLUTION is justified and reasoned because it can be seen from it that the grounds leading to the conclusion that AUTOPLAN incurred in the non-compliance alleged as charges in the present administrative sanctioning proceeding have been validated with the application of the mitigating factors provided for in the SANCTIONS REGULATION; and,

In view of the provisions of numeral 26 of article 12° of the Regulations on Organization and Functions of the SMV, approved by Supreme Decree No. 216-2011-EF;

RESOLVES:

Article 1°.- To declare unfounded the appeal filed by Autoplan Empresa Administradora de Fondos Colectivos S.A. against the Resolution of the Deputy Superintendent of the SMV No. 004-2024-SMV/10.

Article 2°.- To declare the administrative remedy exhausted.

Article 3°.- To transcribe the present resolution to Autoplan Empresa Administradora de Fondos Colectivos S.A.

Article 4°.- To order the publication of the present resolution on the Institutional Website of the Superintendency of the Securities Market on the Single Digital Platform of the Peruvian State (www.gob.pe/smv).

Register, communicate and publish.

Zósimo Juan Pichihua Serna
Superintendent of the Securities Market

[5] Article 30.- SANCTIONS FOR MINOR INFRINGEMENTS For the commission of minor infringements, the following sanctions shall be imposed on the offender: a) Admonition; or, b) A fine of not less than one (1) UIT nor more than twenty-five (25) UIT;

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PERU Ministry of Economy and Finance
SMV
Superintendency of the Securities
Market

“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"

Electronic document si gned digitally within the framework of Law No. 27269, Law on Dig ital Signatures and Certificates, its Regulations and amendments.
The integrity of the document and the authorship of la( s) fi rma( s) pueden ser verificadas en https://apps.fi rmaperu.gob.pe/web/validador.xhtml