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Superintendent Resolution No. 038-2024-SMV/02

Lima, 1 April 2024

The Superintendent of the Securities Market

WHEREAS:

File No. 2022047090, and Report No. 280-2024-SMV/06 of 4 March 2024 issued by the Legal Advisory Office; whereby it issues an opinion on the appeal filed by Autoplan empresa Administradora de Fondos Colectivos S.A. against Deputy Superintendent Resolution SMV No. 056-2023-SMV/10.

CONSIDERING:

That, by Deputy Superintendent Resolution SMV No. 056-2023-SMV/10 of 28 August 2023 (hereinafter, SANCTION RESOLUTION), it was resolved to sanction Autoplan Empresa Administradora de Fondos Colectivos S.A. (hereinafter, AUTOPLAN EAFC) with a fine of 4.2 UIT for having incurred the following infractions:

(i) One (1) infraction classified as serious as established in Annex XIII, numeral 2, subparagraph 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 collective funds administration contract regarding the legal term established to provide a response to claims No. 1491 and No. 1517, on 13 and 19 July 2021, respectively;

(ii) One (1) infraction classified as serious as established in Annex XIII, numeral 2, subparagraph 2.16 of the SANCTIONS REGULATION, for having failed to comply with the collective funds administration contract by not having the contract terminated on the requested date; and,

(iii) One (1) infraction classified as serious as established in Annex XIII, numeral 2, subparagraph 2.16 of the SANCTIONS REGULATION, for having failed to comply with the collective funds administration contract regarding the sending of payment receipts.

That, on 20 September 2023, AUTOPLAN EAFC filed an appeal against the SANCTION RESOLUTION, in order for the fine imposed by the Superintendency of the Securities Market – SMV to be mitigated;

That, by Report No. 280-2024-SMV/06 of 4 March 2024 (hereinafter, REPORT), the Legal Advisory Office issued an opinion on the appeal filed by AUTOPLAN EAFC;

That, by Official Letter No. 876-2024-SMV/14 of 4 March 2024, the REPORT was sent to AUTOPLAN EAFC, so that it may submit its

PERU 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"

arguments, within a term of five (5) business days, as provided by article 18 of the SANCTIONS REGULATION;

That, it should be noted that, to date, AUTOPLAN EAFC has not submitted arguments to the referred report;

I. ARGUMENTS OF THE APPEAL

That, AUTOPLAN EAFC requested that the fine imposed by the SANCTION RESOLUTION be mitigated by at least 30%, based on the following arguments:

(i) It reiterates that it acknowledges its responsibility regarding the three (3) charges imputed; therefore, the mitigating circumstance of responsibility contemplated in article 257 of the Single Ordered Text of Law No. 27444, General Administrative Procedure Law, approved by Supreme Decree No. 004-2019-JUS (hereinafter, TUO OF THE LPAG), and numeral 2 of subparagraph a) of article 26 of the SANCTIONS REGULATION should be applied to it; and,

(ii) It states that, from the information in the file and from that which it submitted in due course, it could be understood that the mitigating circumstance of the offender's contribution to the clarification of the infraction, provided in literal b) of article 26 of the SANCTIONS REGULATION, should also be applied ex officio.

II. EVALUATION OF THE APPEAL

a. Formal requirements of the appeal

That, in accordance with the provisions of numeral 217.1 of article 217 of the TUO OF THE LPAG, against an «act that is supposed to violate, disregard or impair a right or legitimate interest, its contradiction proceeds in the administrative venue through the administrative resources indicated in the following article, initiating the corresponding recursive procedure»;

That, article 218 of the TUO OF THE LPAG provides that administrative resources are the reconsideration resource and the appeal resource; and that their filing must be raised within the term of fifteen (15) peremptory days;

That, on the matter, it should be specified that AUTOPLAN EAFC is a collective funds administration company that is authorized and supervised by the Superintendency of the Securities Market – SMV. For this reason, it is subject to the mandatory use of the Peruvian Securities Market System – MVNet, and all information that the Superintendency of the Securities Market – SMV sends to the referred entity must be sent to it, through said means, to its digital domicile;

That, in this regard, the Fourteenth Final Complementary Provision of the Regulation of the Law of Signatures and Digital Certificates, approved by Supreme Decree No. 052-2008-PCM (hereinafter, REGULATION OF THE LAW OF SIGNATURES), includes a glossary of terms, among which «Personal electronic notification» is defined under the following terms:

«By virtue of the principle of functional equivalence, personal electronic notification of administrative acts shall be made at the domicile

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electronic or at the official email address of the persons by any electronic means, provided that it allows confirming the receipt, integrity, date and time at which it occurs. If the notification is received on a non-business day or hour, it will take effect on the first business day following said receipt.» (Underlining and emphasis added)

That, in this regard, considering that the SANCTION RESOLUTION was deposited on 28 August 2023 at 23:50:07 hours in the Digital Domicile of AUTOPLAN EAFC, that is, at a non-business hour —as noted from the «Constancia de Recepción de la Notificación»—; the notification of said administrative act took effect on the first business day following said receipt, that is, on 29 August 2023; and, consequently, the period for AUTOPLAN EAFC to file an administrative appeal against the SANCTION RESOLUTION began on 31 August 2023 and ended on 20 September 2023;

That, on the other hand, it should be noted that articles 124 and 221 of the TUO DE LA LPAG set forth the requirements that the appeal must meet;

That, from the evaluation carried out on the basis of the aforementioned legal framework, it has been verified that the appeal filed by AUTOPLAN EAFC meets the requirements established in the TUO DE LA LPAG, given that it was filed within the period provided by the regulations, is based on questions of pure law and meets the other requirements established by the regulations, so it corresponds to this office to evaluate said administrative appeal;

b. Evaluation of the arguments of the appeal

That, as previously stated, AUTOPLAN EAFC requests that the fine imposed in the SANCTION RESOLUTION be reduced by at least 30%, by virtue of the application of the mitigating circumstances of responsibility, because it would have acknowledged its responsibility (numeral 2 of subsection a) of article 26 of the SANCTIONS REGULATIONS) and contributed to the clarification of the sanctioned infractions (subsection b) of article 26 of the SANCTIONS REGULATIONS);

That, in relation to the mitigating circumstance of acknowledgment of responsibility, it should be noted that, in numerals 75, 78 and 79 of the recitals of the SANCTION RESOLUTION, the following was stated:

«75. In relation 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, subsection a) of the TUO DE LA LPAG and in article 26, literals a), b) and c) of the SANCTIONS REGULATIONS, it should be noted that AUTOPLAN EAFC acknowledged its responsibility for the infraction incurred expressly and in writing, after the period granted for the presentation of defenses and before the expiration of the period granted to formulate allegations to the instruction report, in a precise, concise, clear, express and unconditional manner, without ambiguous or contradictory expressions;

(…)

78. From the foregoing, it is concluded that AUTOPLAN EAFC has incurred in the commission of three (3) infractions classified as serious in Annex XIII, numeral 2, subsection 2.16 of the SANCTIONS REGULATIONS, for which a sanction corresponding to infractions classified as serious must be imposed on AUTOPLAN EAFC in accordance with article 38 of the SANCTIONS REGULATIONS; therefore, a fine greater than 25 UIT and up to 50 UIT or the prohibition of formation of new groups would correspond to be applied; however, to the extent that AUTOPLAN EAFC has acknowledged the commission of the infraction; it corresponds to apply the provisions of article 26, literals a), numeral 2 of the SANCTIONS REGULATIONS, so the fine for the infractions must range between 17.5 UIT and 35 UIT; that is, 70% of the range established for serious infractions;

79. However, taking into account the sanction criteria analyzed, and in application of the Principle of Reasonableness contemplated in article 248, numeral 3 of the TUO DE LA LPAG which states that the sanctions to be applied must be proportional to the non-compliance classified as an infraction, this Deputy Superintendency considers that a sanction lower than that provided for serious infractions should be imposed on AUTOPLAN EAFC, in accordance with the provisions of article 39 of the SANCTIONS REGULATIONS;» (Underlining added)

That, as noted from the aforementioned texts, the infractions committed by AUTOPLAN EAFC qualify as serious; however, on the basis of the provisions of article 25 of the SANCTIONS REGULATIONS, the Deputy Superintendency of Prudential Supervision considered that it would be reasonable to apply a sanction lower than those applicable to said infractions (6 UIT) and, furthermore, decided to reduce said sanction by 30% by virtue of the mitigating circumstance of acknowledgment of responsibility provided in numeral 2 of subsection a) of article 26 of the SANCTIONS REGULATIONS. Consequently, said mitigating circumstance of responsibility has been duly applied in the SANCTION RESOLUTION;

That, on the other hand, AUTOPLAN EAFC has also requested that the mitigating circumstance of responsibility provided in numeral b) of article 26 of the SANCTIONS REGULATIONS be applied for having contributed to the clarification of the sanctioned infractions:

«Article 26.- MITIGATING CIRCUMSTANCES OF LIABILITY FOR INFRACTIONS

The following constitute mitigating circumstances of liability for infractions:

(…)

b) Contribution of the offender to the clarification of the infraction.»

That, in this regard, it should be noted that, in numeral 76 of the recitals of the SANCTION RESOLUTION it was stated that:

«76. For its part, it should be noted that AUTOPLAN EAFC has not submitted defenses, only arguments regarding the acknowledgment, therefore it has not contributed to the clarification of the infractions committed. Likewise, it should be indicated that it did not attend to the claims of the COMPLAINANT, nor did it send the respective receipts; and that the termination of the contract did not occur on the date requested by the COMPLAINANT; therefore, the mitigating circumstance of sanction established in literal c) of article 26° of the SANCTION REGULATION is not applicable;» (Underline added)

That, on this matter, it should be noted that, in the appeal, AUTOPLAN EAFC has not specified the documentation and/or information submitted to the Superintendency of the Securities Market – SMV that has contributed to the clarification of the infractions committed. Likewise, from the review of the sanctioning file, it is not observed that such documentation and/or information exists;

That, in this sense, this office shares the position contained in the SANCTION RESOLUTION regarding the fact that the mitigating circumstance of liability established in literal b) of article 26 of the SANCTION REGULATION should not be applied; since AUTOPLAN EAFC has not evidenced that it has contributed to the clarification of the infractions subject to sanction;

That, in accordance with what has been developed and analyzed above, the fine imposed in the SANCTION RESOLUTION should not be reduced; and, consequently, it is appropriate to dismiss the appeal filed by AUTOPLAN EAFC; and,

In accordance with the provisions of numeral 26 of article 12° of the Regulation of Organization and Functions of the Superintendency of the Securities Market, approved by Supreme Decree No. 216-2011-EF and its amendments;

RESOLVES:

Article 1°.- Declare unfounded the appeal filed by Autoplan Empresa Administradora de Fondos Colectivos S.A. against the Resolution of Deputy Superintendency SMV No. 056-2023-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°.- Disseminate this resolution on the Institutional Page of the Superintendency of the Securities Market – SMV on the Single Digital Platform of the Peruvian State for Citizen Orientation (www.gob.pe/smv).

Zósimo Juan Pichihua Serna
Superintendent of the Securities Market

Electronic document fi rmado digitally signed within the framework of Law No. 27269, Law of Fi rmas and Digital Certificates, its Regulation and amendments.
The integrity of the document and the authorship of the( s) fi rma( s) can be verified at https://apps.fi rmaperu.gob.pe/web/validador.xhtml

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"

Superintendent Resolution No. 038-2024-SMV/02 dismissing Autoplan's appeal against sanction resolution SMV No. 056-2023-SMV/10