Superintendent Resolution No. 092-2025-SMV/02

PERÚ Ministry of Economy and Finance

SMV
Securities Market
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Superintendent Resolution
No. 092-2025-SMV/02
Lima, August 14, 2025
The Superintendent of the Securities Market
SEEN:
The file No. 2023037487 and Report No. 1131-2024- SMV/06, from the Legal Advisory Office, through which it issues an opinion on the appeal filed by Empresa Regional de Servicio Público de Electricidad de Puno S.A.A. (hereinafter, ELECTROPUNO) against Resolution No. 024- 2024-SMV/11 (hereinafter, THE RESOLUTION); CONSIDERING:

1. That, through THE RESOLUTION, ELECTROPUNO was sanctioned
   with a fine of 26 UIT, for having committed one (01) very serious infringement typed in item 1.4 of section 1 of Annex I of the Sanctions Regulation 1 , approved by SMV Resolution No. 035-2018-SMV/01 (hereinafter, SANCTIONS REGULATION) for the submission of inaccurate information on the distribution and/or application of profits corresponding to the 2020 exercise, communicated through the material event of April 26, 2021;
2. That, through a letter presented on April 30,
   2024, ELECTROPUNO filed an appeal (hereinafter, THE APPEAL) in whose petition it requests that the nullity of THE RESOLUTION be declared, the imposed fine be set aside, and the corresponding administrative sanctioning procedure be archived;
   I. ANALYSIS OF THE ADMISSIBILITY OF THE APPEAL
3. That, from the evaluation carried out, it is observed that the
   appeal meets the requirements established in articles 113, 207, 209 and 211 of Law No. 27444, General Administrative Procedure Law 2 (in

"1.4 Submit to the SMV, to the Exchange, to the entity in charge of the Centralized Mechanism, to the investor and, in general, to any other subject of the securities market, inaccurate or false information; or disseminate such information in the market." 2 Article 113.- Requirements of the writings Any writing submitted to any entity must contain the following:

1. Full names, address and National Identity Document number or foreigner's ID card of the administered party, and if applicable, the quality of representative and of the person represented.
2. The concrete expression of what is requested, the factual grounds supporting it and, when possible, the legal ones.
3. Place, date, signature or digital fingerprint, in case of not knowing how to sign or being impeded.
4. The indication of the body, entity or authority to which it is addressed, understood as such, as far as possible, the authority of the grade closest to the user, according to the hierarchy, with competence to hear and resolve it.
5. The address of the place where notifications of the procedure are desired to be received, when it is different from the real domicile exposed pursuant to item 1. This designation of domicile takes effect from its

PERÚ Ministry of Economy and Finance

SMV
Securities Market
Superintendency
Electronically signed document within the framework of Law No. 27269, Law on Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and authorship. indication and is presumed subsistent, unless its change is expressly communicated. Likewise, the email or, if applicable, the electronic mailbox, pursuant to article 20 of this law.
6. The list of documents and attachments accompanying, indicated in the TUPA.
7. The identification of the matter file, in the case of procedures already initiated.
Article 207. Administrative resources
207.1 Administrative resources are:
a) Recurso de reconsideración b) Recurso de apelación Only in the event that a law or legislative decree expressly establishes, the filing of the administrative review resource is admissible.
207.2 The term for filing the resources is fifteen (15) peremptory days (...)
Article 209.- Appeal
The appeal shall be filed when the challenge is based on a different interpretation of the evidence produced or when it concerns matters of pure law, and must be directed to the same authority that issued the act being challenged so that it elevates the proceedings to the hierarchical superior.
Article 211.- Requirements of the appeal
The appeal writing must indicate the act from which the appeal is made and comply with the other requirements provided for in article 113 of this Law 3 The appealed resolution was notified on 10/04/2024 and the appeal was filed on 30/04/2024, within the established period.

PERÚ Ministry of Economy and Finance

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Electronically signed document within the framework of Law No. 27269, Law on Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and authorship.
II. APPEAL
4. That, next, the arguments contained in THE APPEAL presented by ELECTROPUNO are exposed briefly, as well as the
evaluation thereof;
5. That, ELECTROPUNO alleges that it does not issue bonds,
shares or short-term instruments, in the securities market. It adds that the information it registers in the Public Registry of the Securities Market (hereinafter, RPMV), is only informative and does not have decisive character on third parties. Regarding this, it specifies that it is a State company that lists on the Lima Stock Exchange (in the future, the BVL), but does not trade and currently the National Fund for Financing of the Business Activity of the State (hereinafter, the FONAFE) is its majority shareholder, with a participation of 99.65%; the rest are 3,360 minority shareholders, with a participation of 0.35%, with an average capital per shareholder of S/ 150. It adds that it does not register negotiation and/or quotation of shares, due to the fact that its shares are not for sale, since, being a Company of the State, it does not require third-party financing. Therefore, it considers that its actions have not generated harm to the public interest and/or protected legal good. It states that, as derived from item 37 of THE RESOLUTION, on the dates of the commission of the facts under analysis no operations were carried out in the stock exchange round and that since 2018 to date no stock exchange round operation has been carried out either;
6. That, regarding this, on the obligations of issuers in the
securities market, the Single Ordered Text of the Securities Market Law, approved by Supreme Decree Nº 020-2023-EF (hereinafter, the TUO LMV), signals:
"Article 10.- Quality of Information.-

indication and is presumed subsistent, unless its change is expressly communicated. Likewise, the email or, if applicable, the electronic mailbox, pursuant to article 20 of this law.
6. The list of documents and attachments accompanying, indicated in the TUPA.
7. The identification of the matter file, in the case of procedures already initiated.
Article 207. Administrative resources
207.1 Administrative resources are:
a) Recurso de reconsideración b) Recurso de apelación Only in the event that a law or legislative decree expressly establishes, the filing of the administrative review resource is admissible.
207.2 The term for filing the resources is fifteen (15) peremptory days (...)
Article 209.- Appeal
The appeal shall be filed when the challenge is based on a different interpretation of the evidence produced or when it concerns matters of pure law, and must be directed to the same authority that issued the act being challenged so that it elevates the proceedings to the hierarchical superior.
Article 211.- Requirements of the appeal
The appeal writing must indicate the act from which the appeal is made and comply with the other requirements provided for in article 113 of this Law 3 The appealed resolution was notified on 10/04/2024 and the appeal was filed on 30/04/2024, within the established period.

PERÚ Ministry of Economy and Finance

SMV
Securities Market
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Electronically signed document within the framework of Law No. 27269, Law on Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and authorship.
All information that by provision of this law must be presented to the SMV, to the exchange, to the entities responsible for the mechanisms centralized or to investors, must be true, sufficient and timely. Once the information is received by these institutions it must be put immediately at the disposal of the public." (Emphasis added)
7. That, likewise, article 30 of the TUO LMV signals:
"Article 30.- Material Events.- The registration of a certain value or issuance program entails for its issuer the obligation to inform the SMV and, if applicable, to the respective exchange or entity responsible for conducting the centralized mechanism, of the material events, including negotiations in progress, about itself, the value and the offer made of this, as well as the dissemination of such facts in a true, sufficient and timely manner. The information must be provided to these institutions and disseminated as soon as the fact occurs or the issuer takes knowledge of it, as the case may be." (Emphasis added)
8. That, according to what the cited norms state,
all information that issuers present must meet a minimum standard guaranteeing its quality. One of those minimum requirements is truthfulness. On the other hand, the mere fact that a value has been inscribed in the RPMV carries responsibility for the issuer to comply with the obligation to inform the market that information that constitutes a material event;
9. That, the duty to be, established in the norm, does not
contemplate any other scenario, such as the fact that the values are, or are not, subject to negotiation or the number of shareholders who possess the issued values. Therefore, to determine if an issuer is obliged to comply with what is stated in the cited norm, it is sufficient that it has values inscribed in the RPMV;
10. That, in the present case, since ELECTROPUNO has
values inscribed in the RPMV, it is obliged to inform of the material events, observing the information quality standard, apart from any particular situation;
11. That, regarding compliance with said obligation,
article 6 of the Regulation of Material Events, approved by means of Resolution
SMV No. 005-2014-SMV/01 (hereinafter, MATERIAL EVENTS REGULATION), establishes:
Article 6.- Duty of diligence
In compliance with the obligations established in this Regulation, the Issuer is responsible for:
6.1. Ensuring that the information it communicates has the
capacity to influence significantly, as defined in articles 3 and 4, and that it is true, clear, sufficient and timely, as well as that the same is not disseminated to a specific group of investors or other

PERÚ Ministry of Economy and Finance

SMV
Securities Market
Superintendency
Electronically signed document within the framework of Law No. 27269, Law on Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and authorship. groups with interest in it before it is available to all the public, through the means established in this Regulation"; (Emphasis added)
12. That, likewise, article 8 of said Regulation,
establishes:
"Article 8.- Content of material events
In the content of the communication of a material event, the Issuer must observe the following:
8.1. Be true, clear, sufficient and complete. (...)"
(Emphasis added)
13. That, in concordance with the previously cited norm, item 14 of Annex 1 of the MATERIAL EVENTS REGULATION states that it constitutes a material event:
"(...)
Financial situation and benefits
(...)
14. Information relating to the distribution or application of profits of the
exercise, indicating the amount and exercise to which it corresponds, and, if applicable, the dividend and/or percentage of released shares that corresponds per common and/or investment share, the number of benefited shares, as well as record date and delivery date of any value or benefit (...)
14. That, in the present case, it is observed that, according to the referred regulation, the information in question constitutes a material event. In that sense, the material event revealed to the market on April 26
2021 by ELECTROPUNO, referring to the amount of dividend per share that corresponded to apply to the distribution of profits of the 2020 exercise, contained inaccurate information and therefore did not meet the quality standard established by the norm, since with the presentation of the material event of May 25, 2021 it was determined that corresponded to make the distribution among a total of 146'241,179 common shares and, therefore, the amount of dividend per share was S/ 0.18640914 and not as initially disclosed (129'775,548 common shares, with an amount of dividend per share of S/ 0.21006032). Therefore, it was determined that with its conduct, ELECTROPUNO incurred in the infringement established in section 1.4 of item 1 of Annex I of the SANCTIONS REGULATION, which states:
"Submit to the SMV, to the Exchange, to the entity in charge of the Centralized Mechanism, to the investor and, in general, to any other subject of the securities market, inaccurate or false information; or disseminate such information in the market"
15. That, as can be seen, the duty is clear
disposed by the norm, referred to the obligation of issuers to inform of the material events according to the standards established; likewise, the infringement in which ELECTROPUNO incurred is duly typified and supported by the

PERÚ Ministry of Economy and Finance

SMV
Securities Market
Superintendency
Electronically signed document within the framework of Law No. 27269, Law on Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and authorship. facts of importance diffused to the market. Therefore, there is no support in the arguments of the appellant, regarding this aspect;
16. That, in that sense, it is not possible to sustain that the fact that ELECTROPUNO does not issue bonds or short-term instruments, in the
securities market exempts or exonerates it from complying with the previously mentioned regulation that every issuer with values inscribed in the RPMV must observe, independently of whether it has issued or not financial instruments;
17. That, on the other hand, regarding the arguments that the information of ELECTROPUNO that registers in the RPMV is only informative and does not have decisive character on third parties, given that it is a company of the State that lists on the BVL, but does not trade and currently its majority shareholder is FONAFE,
it must be specified that the obligation to comply with the norms of the securities market, such as informing of events that qualify as material events, is not subordinated to the type of issuer (if it is a State company or not) nor to verify if the values inscribed in the RPMV trade or not, or if they have a volume or not of negotiation in the BVL, since the aforementioned regulation aims to guarantee the transparency of information in the securities market and the protection of investors;
18. That, likewise, the fact that FONAFE is the
majority shareholder of ELECTROPUNO, with a participation of 99.65% of shareholding, and that the rest of its shareholders are minority (3,360 people), with a participation of 0.35%, does not justify that said shareholders do not have the right to receive true, sufficient and timely information from the issuer, as long as such information allows them to guarantee their rights as such and adopt the decisions they deem convenient to carry out;
19. That, for the reasons expressed, it is not possible
legally to support the arguments of ELECTROPUNO treated in the cited paragraphs, more so when the dissemination of inaccurate information is not necessarily conditioned to damage or economic impact that it may generate to shareholders or investors, since what is expected is that correct information be provided on that information that every issuer, without any exception, is obliged to diffuse in the securities market;
20. That, regarding the determination of the sanction and to the argument that the RESOLUTION presents vices of nullity for lack of motivation, it must be indicated, as a prior aspect to the development of ELECTROPUNO's challenge arguments, that the alleged vice refers exclusively to the determination of the quantum of the imposed fine and not to the administrative responsibility established by the administrative act subject to challenge, since ELECTROPUNO states:
"Therefore, the challenged Resolution contains vices and suffers from motivation, which supports an exorbitant fine that will affect directly the Peruvian State of which it is also part the same SMV, because Electro Puno S.A.A. is a Public Law company."

PERÚ Ministry of Economy and Finance

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Securities Market
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21. That, regarding this, in order to determine if we are
facing or not one of the causes of absolute nullity for transcendental vices, the text of article 10° of the LPAG 4 must be reviewed;
22. That, in the case that concerns us ELECTROPUNO requests
the nullity of the entire sanctioning procedure for the reason mentioned previously, an aspect that we will evaluate to verify if we are facing the supposed vice of nullity in the extent of the determination of the administrative sanction by the sanctioning body;
23. That, regarding the motivation of the RESOLUTION, it
is observed that the line organ in Section V. "Determination of the Sanction" has made an analysis of each of the sanction criteria (Considerations 28 to 42), which has allowed it to determine the imposed fine;
24. That, regarding the motivation of administrative acts,
Morón 5 writes:
"Content of the duty of motivation
The content of the requirement we estimate comprises both the justification of the legal aspects –through the citation of the relevant legal sources, the synthesis of the legal arguments alleged and followed to consider them or dismiss them– as well as the justification of the facts –relation of real situations appreciated and verified by the official–. Regarding the justification of the legal aspects, the motivation implies the express citation of the pertinent normative source, the synthesis of the legal interpretation given to the precept and the expression of the sense and manner in which it is estimated that the precept applies to the case submitted to knowledge. The citation of the appreciated facts imposes that the Administration resolves only on real circumstances, and taken as certain that serve to formulate conviction of material truth in the authority that decides the procedure. It is concretized in the relation of the relevant proven facts of the specific case. Justification is not due the non-existent assumptions, lacking reliability, unexamined or

4 "Article 10 of the TUO of the LPAG.- Causes of nullity These are vices of the administrative act, which cause its absolute nullity:

1. Contravention to the Constitution, to laws or to regulatory norms.
2. The defect or omission of any of its validity requirements, unless one of the cases of
   preservation of the act referred to in Article 14 is presented.
3. Express acts or those resulting from automatic approval or positive administrative silence,
   by which faculties or rights are acquired, when they are contrary to the legal system, or when the requirements, documentation or essential procedures for acquisition are not met.
4. Administrative acts that are constitutive of a criminal offense, or that are issued as a consequence of the same."
   5 MORON URBINA, Juan Carlos (2020) Comments on the General Administrative Procedure Law. Volume I. Lima:
   Gaceta Jurídica. Pgs. 247 and 248

PERÚ Ministry of Economy and Finance

SMV
Securities Market
Superintendency
Electronically signed document within the framework of Law No. 27269, Law on Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and authorship. generalities that as artificial or biased pretexts hide deviations in the exercise of public function. In addition to this, the motivation of resolutions must include the citation of the main arguments of the (the) administered(s) and the way in which they have been taken into account at the moment of resolving, both in a dismissive or affirmative manner."
25. That, as part of the analysis on the supposed nullity
of the Resolution for lack of motivation, alleged by ELECTROPUNO, below, the foundations exposed in THE APPEAL will be analyzed;
26. That, regarding the gravity of the damage to the public
interest and/or protected legal good, ELECTROPUNO alleges that there is no damage, since the company does not trade on the stock exchange and its shares are not for sale; consequently, it does not issue bonds, shares or short-term instruments, in search of financing from private parties or third parties, for this reason, the reported information does not influence, nor has repercussion in the securities market, being only informative and does not have decisive character on third parties;
27. That, likewise, it adds that it has complied with carrying out
registrations in a true, sufficient and timely manner of the material events, regarding the increase in its social capital, in which the information was recorded correctly, so that the shareholders had full knowledge of the capital increase and profit distribution value, as recognized in Consideration N° 45 of the RESOLUTION;
28. That, regarding this, it should be noted that the transparency of the
securities market was indeed affected, since through the material event of April 26 2021, it was communicated, regarding the distribution of profits of the exercise 2020, that it corresponded to make the distribution among a total of 129'775,548 common shares, determining an amount of dividend per share of S/ 0.2100603; however, the referred information was not exact, due to the fact that, subsequently, on May 25, 2021, it communicated as a material event that the correct number of shares was 146'241,179 common shares, and, therefore, that the amount of dividend per share was S/ 0.18640914. In that sense, for almost a month, the market had information that was incongruent with reality;
29. That, additionally, it should be reiterated that the fact that
FONAFE is its majority shareholder does not diminish the importance of the right of its minority shareholders to receive true, sufficient and timely information from the issuer, as long as such information allows them to guarantee their rights as such and adopt the decisions they deem convenient to carry out;
30. That, likewise, it should be specified that Consideration N°
45 of the RESOLUTION, to which ELECTROPUNO refers, states that through the institutional page of the SMV, via material events, it could be verified that ELECTROPUNO communicated the information concerning the capital increase of December 30, 2019, the results of the preferential subscription rounds of the referred increase; and that in its financial information corresponding to the 2020 exercise, both in the Individual Annual Audited Financial Statements as of December 31, 2020

PERÚ Ministry of Economy and Finance

SMV
Superintendencia del Mercado de Valores
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 como en la Memoria Anual, se detalla que el Emisor registraba un capital social representado por 146’241,179 acciones comunes de S/ 1.00 de valor nominal cada una, autorizadas, emitidas y pagadas pertenecientes mayoritariamente al accionista FONAFE, con un 99.65% de participación accionaria;
31. That, in this regard, it is pertinent to mention that the reference in the aforementioned Recital in the RESOLUTION is made in the context of the analysis for the application of the Principle of Reasonableness and not as an argument oriented towards the non-existence of harm to the public interest and/or protected legal good;
32. That, with respect to the issuer's sanctioning history, ELECTROPUNO questions whether antecedents for a different infringing type than the one referred to in the RESOLUTION should have been taken into account;
33. That, in this regard, Article 25 of the SANCTIONS REGULATION, in concordance with Articles 344 of the TUO LMV and 230 of the LPAG, states that when imposing the sanction, antecedents regarding firm sanctions imposed by the SMV within a period of four (4) years prior to the commission of the infraction to be sanctioned will be taken into account. On this particular matter, it should be noted that there is another criterion, that of recidivism, which evaluates the existence of sanctions imposed on the regulated party by the SMV for the commission of the same infraction; for this purpose, those firm sanctions imposed by the SMV within a period of one (1) year are taken into account;
34. That, the RESOLUTION takes into account the sanctions imposed on ELECTROPUNO in the last four (4) years to evaluate the criterion of sanctioning antecedents (Recital No. 33); and those imposed for the same infraction in the last year, to evaluate the criterion of recidivism (Recital No. 34). In this sense, no violation of the applicable regulations is observed in the evaluation performed;
35. That, with respect to the Circumstances of the commission of the infraction, ELECTROPUNO states that from Recital No. 35 of the RESOLUTION it is inferred that tendentious information has not been incorporated, which does not reflect its real financial state, a fact that is accredited by having published its Financial Statements and Annual Report, where it is recorded that as of December 31, 2020, Capital in shares is represented by 146'241,179 common shares of S/ 1.00 nominal value each (correct information), authorized, issued, and paid belonging to FONAFE and minority shareholders. Likewise, ELECTROPUNO alleges that it has been coherent in the records of material events generated from December 02, 2019, to June 30, 2021, where the capital increase was communicated;
36. That, in this regard, it should be clarified that the facts detailed in the referenced recital of the RESOLUTION are taken into account as part of the evaluation for determining the applicable sanction as a consequence of having determined the responsibility for the infraction. Therefore, the analysis performed in section 5.1 of the RESOLUTION, 'Sanction Criteria', cannot be taken into account to attempt to disclaim the responsibility of ELECTROPUNO, which has already been established;

PERÚ Ministerio de Economía y Finanzas

SMV
Superintendencia del Mercado de Valores
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
37. That, with respect to the economic damage caused and its repercussion on the market, ELECTROPUNO alleges that, by only being listed on the stock exchange and not trading, its actions do not cause any repercussion on the Securities Market;
38. That, in this regard, although Recital No. 38 of the Resolution states that “there is indeed a prejudice that affects the market because not disseminating truthful, sufficient, and timely information as a material event produces an impact on the transparency of the securities market, which is considered a protected legal good”, this Office considers, based on the analysis performed, that it has not been evidenced that the infraction has produced a quantifiable prejudice, understood as an economic damage caused to one or several investors, a fact that is taken into account to grade the fine imposed;
39. That, with respect to the illicit benefit resulting from the commission of the infraction, ELECTROPUNO alleges that, as derived from Recital No. 39 of the RESOLUTION, illegal benefit is not accredited and this is because 100% of the dividends corresponding to its main shareholder, FONAFE, have been paid. In this regard, it should be noted that, although illegal benefit obtained has not been accredited, this does not bypass the responsibility of the issuer;
40. That, with respect to the probability of detection of the infraction, ELECTROPUNO states that it remedied the issue prior to the start of the sanctioning procedure and did not wait for control actions to begin;
41. That, in this regard, it must be stated that, according to what is established by letter a) of Article 28 of the SANCTIONS REGULATION, in the present case the application of the exemption from responsibility due to remediation does not apply. Without prejudice to this, Recital No. 35 of the RESOLUTION does take this fact into account, as part of the evaluation of the sanction criteria;
42. That, with respect to the existence or non-existence of intent in the offender's conduct, ELECTROPUNO alleges that, according to Recital No. 41 of the RESOLUTION, it is not accredited that it acted with malice;
43. That, on this particular matter, from the facts that occurred and from the proceedings in the file, it is not possible to determine the existence of intent in ELECTROPUNO's actions; however, it cannot be overlooked that there was negligence in complying with its obligations under the securities market regulations; since, as mentioned in Recital No. 45 of the RESOLUTION, in its financial information corresponding to the 2020 fiscal year, both in the Audited Individual Annual Financial Statements as of December 31, 2020, and in the Annual Report, it is detailed that the Issuer registered share capital represented by 146,241,179 common shares of S/ 1.00 nominal value each, authorized, issued, and paid belonging mostly to the shareholder FONAFE, with a 99.65% shareholding participation. As can be observed, on that date it communicated the correct number of common shares and, after presenting said information, in the material event of April 21, 2021, it recorded the information incorrectly;

PERÚ Ministerio de Economía y Finanzas

SMV
Superintendencia del Mercado de Valores
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
44. That, taking into consideration everything stated above, it is not observed that the RESOLUTION lacks motivation, nor contravenes the constitution, laws, or regulatory norms, nor that any of the validity requirements of the administrative act were omitted;
45. That, based on the challenge formulated regarding the Sanction Criteria, ELECTROPUNO alleges that “not all conditions are met to establish a serious sanction” against it. Consequently, it alleges i) that the imposed sanction is disproportionate and excessive; and ii) that the RESOLUTION is null ab initio due to the causes established in paragraphs 1) and 2) of Article 10° of the LPAG, specifically regarding a supposed lack of motivation, which violates constitutional guarantees protected by the Political Constitution of Peru and the LPAG. It also alleges the supposed violation of the principles of legality and due process;
46. That, ELECTROPUNO errs in considering that the sanction criteria have the purpose of determining the existence of responsibility. Likewise, it errs in considering that the motivation of the resolution is limited to accrediting said criteria. These do not constitute the infringing type, but rather these criteria are oriented towards the analysis and calculation of the sanction to be imposed for the previously established infraction;
47. That, regarding the application of the principle of reasonableness, ELECTROPUNO alleges that the imposed fine is disproportionate and excessive, because there is no damage to the public interest and/or protected legal good, since the company does not trade on the stock exchange and its shares are not for sale, consequently it does not issue bonds, shares, or short-term instruments, seeking financing from private parties or third parties, for this reason, the reported information does not influence, nor has repercussion on the securities market, being merely informative and not having decisive character for third parties, despite this it complies with registering “material events”. It adds that on the dates of the commission of the facts under analysis, no operations were carried out on the stock exchange wheel and that since 2018 to date, no stock exchange wheel operation has been carried out either;
48. That, likewise, ELECTROPUNO requests that its conduct over time be evaluated, as it has informed the distribution or application of earnings of the fiscal year, having communicated the Capital increase through the registration of “Material Events” from December 02, 2019, to June 30, 2021, date on which the formalization of the capital increase and modification of statutes was achieved in Public Registries;
49. That, in this regard, additionally to what has already been developed, from reading the RESOLUTION, it is observed that in section 2.2 of the RESOLUTION the charges imputed to ELECTROPUNO are detailed objectively, in section 2.3 its defenses are detailed; likewise, in section 4.1 an analysis of each of the charges and defenses is performed, citing the applicable legal basis and the development of the facts and why ELECTROPUNO's arguments are not supported;
50. That, after the referenced analysis, the first-instance body takes into account what was mentioned by ELECTROPUNO and based on this, together with other arguments, determines that it corresponds to impose a fine within the range of serious infractions, that is, between twenty-five (25) and fifty (50) UIT; being that, if the criteria had not been weighed and the mentioned principle applied, a fine corresponding to a very serious infraction, of between fifty (50) and seven hundred (700) UIT, would have been imposed. Therefore, it is verified that the alleged facts have indeed been subject to evaluation by the first-instance body;
51. That, as can be observed, in the RESOLUTION each of the sanction criteria has been analyzed and the principle of reasonableness has been applied, exposing the reasons for the decision;
52. That, with respect to the supposed violation of the principle of legality, as developed in Recitals No. 5 to 19 of the RESOLUTION, the duty to be found is adequately materialized in a norm with the rank of Law, namely the TUO LMV, and developed in the MATERIAL EVENTS REGULATION; likewise, the corresponding infringing type is duly reflected in the SANCTIONS REGULATION. In this sense, all legality requirements are met, since the SMV's actions are framed within respect for the Constitution, law, and right, within the faculties attributed to it and according to the purposes for which they were conferred;
53. That, with respect to the supposed violation of the principle of due process, it is not observed that ELECTROPUNO's right to offer and/or produce evidence was limited; nor its right to expose its arguments; likewise, the resolution is duly founded and the acts subject to the sanctioning procedure have been duly notified. In this sense, no violation of the referred principle is observed either;
54. That, regarding the argument that ELECTROPUNO “has remedied its material error, prior to the start of the administrative sanctioning procedure and without being required by the SMV, therefore, as not all requirements are met to determine a sanction, no third parties are affected and having performed a prior remediation, it does not correspond to impose a fine equivalent to a serious sanction, considering that evaluating the facts and context could have resulted in a lesser sanction applying the regime of gradation of sanctions”;
55. That, on this particular matter, it should be noted that, as indicated by paragraph f) of Article 27 of the SANCTIONS REGULATION, voluntary remediation by the potential sanctioned party of the act or omission imputed as constitutive of an administrative infraction, prior to the notification of the charge imputation referred to in the LPAG, constitutes an exemption from responsibility, provided that no communication demanding compliance with the obligation had been sent. However, paragraph a) of Article 28 of the same Regulation establishes:
“Article 28.- CIRCUMSTANCES IN WHICH REMEDIATION DOES NOT APPLY AS AN EXEMPTION FROM RESPONSIBILITY Remediation prior to the notification of the charge imputation is not considered as an exemption from responsibility, when a communication demanding compliance with the obligation had been sent. Acts that are not subject to remediation for the purposes of letter f) of Article 27:
a) The submission of inaccurate or false information or documentation to the SMV and/or that is disseminated to the market.
(…) ”
(Emphasis added)
56. That, for the foregoing, it is not feasible to allege that voluntary remediation operated in the present case, as this is not legally possible, as indicated in the preceding paragraph;
57. That, it cannot be overlooked that, as has been determined in the administrative proceedings of the present sanctioning procedure, the material event of May 25, 2021, allowed noticing the inaccuracy of the information contained in the material event of April 26, 2021, since through the submission of the first material event, it was communicated that it corresponded to make the distribution among a total of 129’775,548 common shares, with a dividend amount per share of S/ 0.21006032, when in reality, as evidenced with the information referred to in the second material event, concordant with the financial information presented corresponding to the 2020 fiscal year, the correct number of shares was 146’241,179 common shares and, therefore, the dividend amount per share was S/ 0.18640914. This aspect which in no way can be qualified as a voluntary remediation of the act constitutive of the infraction;
58. That, notwithstanding the foregoing, according to what is stated in Recital No. 38, since no caused economic prejudice has been evidenced, it corresponds that the fine imposed on ELECTROPUNO be reduced, in application of the last paragraph of Article 25 of the SANCTIONS REGULATION, which provides that, when from the evaluation of the sanction criteria, it is determined that there is no proportionality between the sanction to be imposed and the imputed facts, by exception and through a duly founded resolution, a sanction corresponding to a lower classification than that provided for can be imposed; and
Being in accordance with what is provided by paragraph 26 of Article 12 of the Organization and Functions Regulation of the SMV, approved by Supreme Decree N° 216-2011-EF and its amendments; RESOLVES:
Article 1.- Declare partially well-founded the appeal filed by Empresa Regional de Servicio Público de Electricidad de Puno S.A.A. against Superintendent Adjunct Resolution SMV N° 024-2024-SMV/11, for the reasons exposed in the considerative part of this resolution.
Article 2.- Grade the fine imposed in Article 2 of Superintendent Adjunct Resolution SMV N° 024-2024-SMV/11 for the commission of the infraction indicated in its Article 1, referring to the submission of inaccurate information on the distribution and/or application of earnings corresponding to the 2020 fiscal year communicated via the material event of April 26, 2021, from twenty-six (26) UIT, equivalent to S/ 114,400.00 (One Hundred Fourteen Thousand and 00/100 Soles) to ten (10) UIT, equivalent to S/ 44,000.00 (Forty-Four Thousand and 00/100 Soles).
Article 3.- Consider the administrative route exhausted.
Article 4.- Notify this resolution to Empresa Regional de Servicio Público de Electricidad de Puno S.A.A.
Article 5.- Order the dissemination of this resolution on the Institutional Page of the Securities Market Superintendence on the Unique Digital Platform of the Peruvian State (www.gob.pe/smv).
Register, communicate, and publish.
Zósimo Juan Pichihua Serna
Superintendent of the Securities Market