Superintendent Resolution No. 139-2024-SMV/02 — SMV — PE

PERU Ministry of Economy and Finance

SMV

Electronically signed document within the framework of Law No. 27269, Law of Digital Signatures and Certificates, its regulations and modifications. The integrity of the document and the authorship of the signature(s) can be verified at https://apps.firmaperu.gob.pe/web/validador.xhtml Superintendent Resolution No. 139-2024-SMV/02 Lima, November 27, 2024 The Superintendent of the Securities Market SEEN:
The file No. 2023010372 and Report No. 1282-2024-SMV/06, issued by the Legal Advisory Office, through which it issues an opinion on the appeal filed by Autoplan Empresa Administradora de Fondos Colectivos S.A. (hereinafter, AUTOPLAN EAFC), as well as the arguments presented; CONSIDERING:
That, through Adjunct Superintendent Resolution SMV No. 069-2023-SMV/10 (hereinafter, the RESOLUTION), the Adjunct Superintendence of Prudential Supervision (hereinafter, SASP) resolved:
(i) To declare that AUTOPLAN EAFC has committed one (1) very serious infringement typified in Annex I, number 1, item 1.15 of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01, (hereinafter, SANCTIONS REGULATION), since it maintained in the position of director, from July 1, 2020 to August 10, 2021, a person who was barred from exercising said position due to registering overdue debts for more than one hundred twenty days (120) in a risk center; (ii) To declare that AUTOPLAN EAFC has committed one (1) serious infringement typified in Annex I, number 2, item 2.26 of the SANCTIONS REGULATION, since AUTOPLAN EAFC did not comply with the obligation of collective fund management companies regarding the constitution of guarantees in favor of the SMV, in support of commitments undertaken with associates, during the period from August 16 to August 26, 2021; (iii) To sanction AUTOPLAN EAFC with a fine of one (1) current Unified Tax Unit (UIT) at the time of effective payment of the fine; That, through a document presented on January 4, 2024, AUTOPLAN EAFC filed an appeal against the RESOLUTION; That, through Office No. 4403-2024-SMV/14, Report No. 1282-2024-SMV/06 of the Legal Advisory Office (hereinafter, OAJ), which contains the legal opinion on the appeal, (hereinafter, REPORT), was sent to AUTOPLAN EAFC; and a period of five (5) business days was granted to formulate its arguments, if deemed pertinent; That, through a document presented on October 2, 2024, AUTOPLAN EAFC sent its arguments to the SMV (hereinafter, ARGUMENTS);

PERU Ministry of Economy and Finance

SMV

Electronically signed document within the framework of Law No. 27269, Law of Digital Signatures and Certificates, its regulations and modifications. The integrity of the document and the authorship of the signature(s) can be verified at https://apps.firmaperu.gob.pe/web/validador.xhtml
I. ARGUMENTS OF THE APPEAL AND ARGUMENTS
That, below are briefly exposed the arguments contained in the appeal filed by AUTOPLAN EAFC, as well as in its ARGUMENTS; That, AUTOPLAN EAFC maintains and reiterates in its ARGUMENTS that through a document of defenses it recognized its responsibility regarding the two charges imputed, that is, regarding: (i) maintaining in the position of director, from July 1, 2020 to August 10, 2021, a person who was barred from exercising said position due to registering overdue debts for more than one hundred twenty days (120) in a risk center; and, (ii) failing to comply with the obligation of collective fund management companies regarding the constitution of guarantees in favor of the SMV, in support of commitments undertaken with associates, during the period from August 16 to August 26, 2021; it also states in its ARGUMENTS that, in this way, it contributed to the clarification of the infringements; That, it also states that, through the information in the file and that it presented in due time, it could be considered ex officio that the appellant is also in the situation established in letter b) of article 26 of the SANCTIONS REGULATION, taking into consideration that AUTOPLAN EAFC has contributed to the clarification of the infringements; That, the appellant requests to consider as mitigating factors the recognition of responsibility, the contribution to the clarification of the infringement, and the remediation carried out after the payment request, as provided in article 26 of the Sanctions Regulation and in article 257 of the Single Text of the General Administrative Procedure Law No. 27444, approved by Supreme Decree No. 004-2019-JUS (hereinafter, TUO OF THE LPAG), being that the imposed fine should be mitigated by at least 50%;
II. ANALYSIS OF THE ADMISSIBILITY OF THE APPEAL
That, from the evaluation carried out, it has been verified that the appeal filed by AUTOPLAN EAFC meets the requirements established in articles 2071 and 2112 of Law No. 27444, General Administrative Procedure Law (hereinafter, LPAG);

1 "Article 207. Administrative resources
218.1 Administrative resources are:
a) Reconsideration appeal b) Appeal
Only in the case that a law or legislative decree expressly establishes, the filing of the administrative review appeal is admissible.
207.2 The term for filing the resources is fifteen (15) peremptory days, and they must be resolved within thirty (30) days except for the reconsideration appeal which is resolved within fifteen (15) days. Exceptionally, in administrative procedures of single instance of competence of the governing councils of regulatory bodies, the reconsideration appeal is resolved within thirty (30) days."
2 "Article 211.- Requirements of the appeal
The appeal document must indicate the act being appealed and meet the other requirements provided in article 124."

PERU Ministry of Economy and Finance

SMV

III. EVALUATION OF THE ARGUMENTS EXPRESSED BY AUTOPLAN
That, below are evaluated the arguments presented by AUTOPLAN EAFC in its appeal and ARGUMENTS; That, regarding what was manifested by AUTOPLAN EAFC that, according to the information in the file and that it presented in due time, the recognition of responsibility, the contribution to the clarification of the infringement, and the remediation carried out can be considered as mitigating factors, as provided in article 26 of the SANCTIONS REGULATION and article 257 of the TUO OF THE LPAG, it must be noted that it has been verified that through a document dated March 17, 2023, AUTOPLAN EAFC, within the deadline granted for the presentation of defenses, recognized its responsibility for the commission of the two (2) infringements imputed in the CHARGES OFFICE; That, in the mentioned defenses, AUTOPLAN EAFC requested the application of letters b) and c) of article 264 of the SANCTIONS REGULATION, referring to the contributor's contribution to the clarification of the infringement and the remediation carried out after its request or the start of the administrative sanctioning procedure; That, regarding the application of letters a) and b) of article 26 of the SANCTIONS REGULATION, this Office considers that in its defenses AUTOPLAN EAFC recognized its responsibility for the infringements subject of the present sanctioning procedure, expressly and in writing, within the deadline granted for the presentation of defenses and in a precise, concise, clear and unconditional manner, without ambiguous or contradictory expressions and has contributed to the clarification of the infringements, therefore it coincides with what was stated by the sanctioning body in Consideration 695 of the RESOLUTION, that it corresponds to apply the mentioned mitigating factors; That, regarding the application of letter c) of article 26 of the SANCTIONS REGULATION, this Office verifies in the proceedings of the present

3 "Article 209.- Appeal
The appeal shall be filed when the challenge is based on a different interpretation of the produced evidence 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."
The reference of this article in the Single Text of the LPAG, approved by Supreme Decree No. 004-2019-JUS (hereinafter TUO LPAG) is located in article 220. 4 "Article 26.- MITIGATING FACTORS OF RESPONSIBILITY FOR INFRINGEMENTS The following constitute mitigating conditions of responsibility for infringements:
(...) b) Contributor's contribution to the clarification of the infringement. c) Remediation carried out after its request or the start of the administrative sanctioning procedure." 5 "69. With regard to the recognition of responsibility of the infractor (article 257, number 1, item a) of the TUO OF THE LPAG) and its contribution to the clarification of the infringement, established in article 265, items a) and b), respectively, of the SANCTIONS REGULATION, it must be indicated that AUTOPLAN EAFC, according to what is stated in the defenses, has recognized its responsibility for the infringements subject of the present sanctioning procedure, expressly and in writing, within the deadline granted for the presentation of defenses, and in a precise, concise, clear, and unconditional manner, without ambiguous or contradictory expressions, and has contributed to the clarification of the infringements, therefore the mentioned mitigating factors of responsibility are applicable to it;"

PERU Ministry of Economy and Finance

SMV

Electronically signed document within the framework of Law No. 27269, Law of Digital Signatures and Certificates, its regulations and modifications. The integrity of the document and the authorship of the signature(s) can be verified at https://apps.firmaperu.gob.pe/web/validador.xhtml file, that the appellant, in compliance with the request made through Office No. 3432-2021-SMV/10.2 notified on August 26, 2021, regarding the constitution of guarantees for the updated amount on that date, sent on August 27, 2021, the guarantee letter No. D000-03543033; and that likewise, in compliance with what was requested through Office No. 4506-2020-SMV/10.2, notified on December 14, 2020 and Office No. 2766-2021-SMV/10.2, notified on July 9, 2021, to remedy the director's situation, it complied with said request on August 10, 2021, coinciding thus with what is stated in considerations 70 and 71 of the RESOLUTION; That, without prejudice to the above and in application of article 29 of the SANCTIONS REGULATION, it corresponded in the case analyzed that the SASP apply the sanction provided for the infringement classified as very serious, whose fine sanction is greater than fifty (50) UIT up to one hundred (100) UIT, according to what is stipulated in letter a) of article 37 of the SANCTIONS REGULATION; however, the sanctioning body, taking into account the sanctioning criteria analyzed in the RESOLUTION and in application of the Principle of Reasonableness, contemplated in article 2306, number 3 of the LPAG, as well as the mitigating factors established in letters a), b) and c) of article 26 of the SANCTIONS REGULATION, imposed on AUTOPLAN EAFC a fine sanction applicable to minor infringements, according to what is established in article 25 of the SANCTIONS REGULATION, imposing on it a fine of one (1) UIT; That, consequently, since it has been proven in the case analyzed, as it emerges from consideration 757 of the RESOLUTION, that the SASP at the time of resolving took into account the recognition of the appellant's responsibility for the infringements subject of the present sanctioning procedure, according to what is established in letter a), number 1 of article 26 of the SANCTIONS REGULATION; as well as that AUTOPLAN EAFC contributed to the clarification of the infringements and remedied them after its request, according to what is established in letters b) and c) of article 26 of the SANCTIONS REGULATION; it corresponds to dismiss what was requested by the appellant in its appeal document and in its ARGUMENTS; and, Being in accordance with what is provided by number 26 of article 12° of the Organization and Functions Regulation 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 Adjunct Superintendent Resolution SMV No. 069-2023-SMV/10.

6 It should be noted that this article is contained in Article 248, number 3 of the TUO OF THE LPAG. 7 "75. However, taking into account the analyzed sanctioning criteria, and in application of the Principle of Reasonableness contemplated in article 248, number 3 of the TUO OF THE LPAG which states that the sanctions to be applied must be proportional to the non-compliance classified as an infringement, it must be considered that regarding the infringements subject of charges, it has not been evidenced that these have had repercussions in the market, nor has it been verified that the management company has obtained an illicit benefit that is directly related to the commission of the infringements, nor that it has had intentionality in its actions regarding this, and it has been verified that AUTOPLAN EAFC is not a repeat offender regarding the infringements; likewise, it has recognized the commission of the infringements, has contributed to their clarification and has remedied them after its request; therefore, this Adjunct Superintendence considers that it corresponds to impose on AUTOPLAN EAFC a fine sanction applicable to minor infringements, according to what is established in article 39° of the SANCTIONS REGULATION;"

PERU Ministry of Economy and Finance

SMV

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