Superintendent Resolution No. 153-2024-SMV/02 — SMV — PE

PERU Ministry of Economy and Finance

SMV
Securities Market
Superintendence
Electronically signed document in the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and authorship Superintendent Resolution No. 153-2024-SMV/02 Lima, December 27, 2024 The Superintendent of the Securities Market SEEN:
The file No. 2022008834 which contains, among others, the appeal filed by BBVA Bolsa Sociedad Agente de Bolsa S.A. (hereinafter, BBVA SAB), against the Superintendent Adjunct Resolution SMV No. 013-2023-SMV/10, Report No. 496-2024-SMV/06 issued by the Legal Advisory Office, as well as the statement of allegations of BBVA SAB; and the oral report carried out by the representatives of BBVA SAB; CONSIDERING:

That, through Superintendent Adjunct Resolution SMV No. 013-2023-SMV/10 (hereinafter, the SANCTION RESOLUTION), the Superintendent Adjunct of Prudential Supervision (SASP) sanctioned BBVA SAB with a fine of four (4) UIT, for having committed the following infractions:
a) One infraction of a serious nature, typified in Annex X, item 2, numeral 2.16 of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01 (hereinafter, the SANCTIONS REGULATION), for not having submitted the Audit Report of the Control System Evaluation corresponding to the 2019 fiscal year, in accordance with the deadline established in article 128 of the Regulation of Intermediation Agents, approved by SMV Resolution No. 034-2015-SMV/01 (hereinafter, RAI); b) One infraction of a serious nature, typified in Annex I, item 2, numeral 2.31 of the SANCTIONS REGULATION, for not having implemented in its Operational Procedures Manual the procedures to be followed in order to verify that investors who participate as institutional investors in primary placement operations meet said condition;
That, likewise, the SANCTION RESOLUTION established as a corrective measure that BBVA SAB adopt the necessary actions for the update of its Operational Procedures Manual, granting it a deadline of thirty (30) business days from the notification of said resolution, to remit to the Securities Market Superintendence – SMV the updated version of said manual;
That, BBVA SAB on March 24, 2023, filed an appeal against the SANCTION RESOLUTION, specifically against the serious infraction typified in Annex I, item 2, numeral 2.31 of the SANCTIONS REGULATION. Likewise, BBVA SAB presented on April 25, 2023, a written

PERU Ministry of Economy and Finance

SMV
Securities Market
Superintendence
Electronically signed document in the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and authorship complementary to its appeal, in which it expands its defense arguments against the SANCTION RESOLUTION and requests that it be granted the right to speak before the Superintendent of the Securities Market;
4. That, through Report No. 496-2024-SMV/06 (hereinafter, the REPORT), the Legal Advisory Office issued its legal opinion on the appeal filed by BBVA SAB;
5. That, through Office No. 1682-2024-SMV/14, BBVA SAB was notified of the REPORT, in order to present its allegations, within a deadline of five (05) business days, as provided for in article 18 of the Sanctions Regulation; and the right to speak before this Office was granted;
6. On May 16, 2024, the oral report took place before the Superintendent of the Securities Market, by the legal representatives of BBVA SAB. Additionally, said company presented written allegations regarding the arguments contained in the REPORT;
I. DEFENSE ARGUMENTS OF BBVA SAB
7. That, below, the arguments contained in the appeal filed by BBVA SAB, as well as in its oral and written allegations, are exposed succinctly:
(i) It indicates that on January 28, 2021, through Office No. 393-2021-SMV/10.2, the SMV requested it, among others, to inform documentarily whether the clients who acquired securities in the primary placement of the company Desarrolladora del Pacífico S.A.C. (hereinafter, the PLACEMENT), in which BBVA SAB acted as placement agent, had, at the date of purchase of the referred instruments, holdings in entities other than CAVALI S.A. I.C.L.V (hereinafter, CAVALI) — such as securities in global accounts or undematerialized securities — in custody of the brokerage agent company or in other intermediation agents that have been declared by the referred clients, in order to accredit an investment portfolio higher than the minimum established by the regulation to be qualified as Institutional Investors; (ii) It alleges that in response to the aforementioned office, it communicated to the SMV that the natural persons who acquired securities of the PLACEMENT as institutional investors subscribed the corresponding sworn declarations of having said quality, in accordance with what was required by Annex 1 of the Regulation of Institutional Investors, approved by Resolution No. 021-2013-SMV/01 (hereinafter, the INSTITUTIONAL INVESTORS REGULATION) and adds that upon subscribing the purchase order, the investors expressly declared the following: i) knowledge of the scope of the “institutional investor” qualification in accordance with the INSTITUTIONAL INVESTORS REGULATION and, ii) having said qualification; (iii) Likewise, it maintains that, subsequently, within the framework of the improvement of its internal procedures, it proceeded to update the format of the sworn declarations subscribed by the persons who declare to qualify as institutional investors; and, on May 18, 2021, it remitted to the SMV, the new formats

PERU Ministry of Economy and Finance

SMV
Securities Market
Superintendence
Electronically signed document in the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and authorship which contain a specific section in which detailed information is requested regarding the financial situation and the securities portfolio of the persons who would qualify as institutional investors; (iv) On the other hand, it adds that on November 25, 2021, its Board of Directors approved an update of its Operational Procedures Manual (hereinafter, the OPM) in order to incorporate, among others, adjustments to section 7.1 of said manual, referred to “Client Segmentation”, which collects the procedure to be followed in primary placements directed to institutional investors to verify that the investors who wish to participate meet said condition (hereinafter, the UPDATE TO THE OPM); (v) It points out that on March 03, 2022, it was notified with Office No. 921-2022-SMV/10.3 (hereinafter, the CHARGES OFFICE), through which the SMV communicated to it the start of an administrative sanctioning procedure against it because it would have committed the commission of two serious infractions, among which is the one typified in Annex I, item 2, numeral 2.31, of the SANCTIONS REGULATION, for lacking a procedure to be followed in order to verify that investors who participate as institutional investors in primary placement operations meet said condition; (vi) It maintains that on March 21, 2022, it presented its defenses, requesting the application of the exemption of responsibility indicated in letter f) of article 27 of the SANCTIONS REGULATION, due to that prior to the notification of the CHARGES OFFICE, it had carried out the UPDATE TO THE OPM and adds that in the new version of its OPM, which is currently in force, it is specified that “it is an indispensable condition that the investor complete the Institutional Investor Sworn Declaration, both when acquiring securities within the framework of the primary market, as well as when acting as counterparties of securities in the secondary market”; (vii) It states that the SANCTION RESOLUTION has inappropriately denied the application of the exemption of responsibility, considering that the institutional investor verification procedure collected in its OPM would be “insufficient” in the opinion of the SASP. It maintains that such argumentation is contrary to the principle of typicity, since the type for which it has been sanctioned refers to the implementation or not of the verification procedure in its OPM and not whether said procedure is sufficient or insufficient in the opinion of the SASP; (viii) In that sense, BBVA SAB indicates that in addition to infringing the principle of typicity collected in numeral 4 of article 230 of Law No. 27444, General Administrative Procedure Law (hereinafter, LPAG) 1 , the SANCTION RESOLUTION also disregards the principle of due process, in what respects that the administered have the
right to refute the charges imputed and adds that, although the SMV has the right to evaluate the content of the procedure, said evaluation cannot lead to dismissing its existence, since in the concrete case, what is being sanctioned through the SANCTION RESOLUTION is not the not having implemented the institutional investor identification procedure, but that the same is not to the satisfaction of the SASP, which, evidently, does not fit with the infraction type imputed in the CHARGES OFFICE; (ix) It points out, both in its statement of allegations and in its oral report, that the first administrative instance demands various implementations and procedures for its OPM that are not provided for in the regulation, and that additionally they are not materially possible to fulfill and indicates that such demands imply, for example, that it must collect certain documentation on the institutional investors, which by its nature is sensitive and reserved, which would imply that no brokerage agent company could comply with those demands and, therefore, would limit access to the market to investors who do comply (and declare to comply, in accordance with the regulation) with the regulatory requirements to be considered as institutional investors; (x) Regarding this, it alleges that it is the INSTITUTIONAL INVESTORS REGULATION itself that circumscribes the verification of the quality of institutional investors to at least (that is, in a sufficient manner) the obtaining of a sworn declaration for these effects. Due to the above, BBVA SAB points out that it is not correct what is stated in the SANCTION RESOLUTION regarding that BBVA SAB only “replicates some aspects of the regulatory framework”, since in the regulatory framework there are no other aspects that must be taken into account by the intermediation agents in the process of verifying that it is about institutional investors; (xi) Without prejudice to the above, it indicates, both in its statement of allegations and in its oral report, that the sworn declaration subscribed by its investors to participate in the Institutional Investors Market is not limited to the information indicated in the penultimate paragraph of Annex 1 of the INSTITUTIONAL INVESTORS REGULATION but that additional information is required as: i) the detail of their investments (specifying if it is about shares, mutual funds, investment funds, bonds, commercial paper and others), as well as a description of them and the market value of each one and, ii) other financial information, such as ownership of real estate, movable property and deposits. Likewise, BBVA SAB adds that the sworn declarations include a commitment by the investors to update said information;

Through the typification of infractions, it is not possible to impose on the administered the fulfillment of obligations that are not previously provided for in a legal or regulatory norm, as appropriate.
In the configuration of sanctioning regimes, the typification of infractions with the same factual scenario and identical basis with respect to those crimes or offenses already established in penal laws or with respect to those infractions already typified in other administrative sanctioning norms is avoided.
(…)”.

PERU Ministry of Economy and Finance

SMV
Securities Market
Superintendence
Electronically signed document in the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and authorship (xii) Therefore, it maintains that it is not that its OPM circumscribes the verification of the quality of institutional investors to the obtaining of a sworn declaration, but that it is the Annex 1 of the INSTITUTIONAL INVESTORS REGULATION itself that considers that said sworn declaration is sufficient for these effects. In that sense, it is not BBVA SAB nor the SASP that determines discretionarily if the sworn declaration is sufficient or not to carry out the aforementioned verification, but that it has been determined explicitly by the Annex 1 of the INSTITUTIONAL INVESTORS REGULATION itself:
“ANNEX 1
INSTITUTIONAL INVESTORS
(…)
Regarding the institutional investors detailed in numerales 4, 5 and 6 of this Annex, the verification carried out must be documented at least with the sworn declaration subscribed by said investors, in which they manifest: (i) knowledge of the scope of said qualification; and (ii) having such condition.
The intermediation agents that act as placement agent must implement and apply diligently procedures, in order that the investors who participate in this market are exclusively institutional investors. In case that the issuers carry out the placement of securities, they must ensure to have the sworn declarations referred to in the preceding paragraph. For such effect, as appropriate, they must keep an internal register of the institutional investors that participate in the placement of said securities.” (Underlining emphasized by BBVA SAB). (xiii) In accordance with the above, BBVA SAB points out that it is the regulation of the matter itself, that determines that the obtaining of the sworn declaration is sufficient to carry out the verification of the quality of institutional investor, so that any additional verification to this is at the criterion of the intermediation agent itself, so that the SANCTION RESOLUTION infringes the principle of legality; since, it contradicts what is stated in the Annex I of the INSTITUTIONAL INVESTORS REGULATION itself, regarding what results a sufficient verification of the quality of institutional investor; (xiv) In that sense, it indicates in its statement of allegations that in the REPORT it is not indicated which would be, in the opinion of the Legal Advisory Office, the additional verification procedures of the quality of institutional investor that should be implemented to comply with the regulation, and this is so because the regulation has not established additional procedures to the obtaining of, at least, the sworn declaration; (xv) Likewise, it maintains that the principle of predictability is affected since the SANCTION RESOLUTION is considering that the requirements established by the regulation itself are not sufficient, which generates legal insecurity regarding the fulfillment of the obligations of the administered. Proof

PERU Ministry of Economy and Finance

SMV
Securities Market
Superintendence
Electronically signed document in the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and authorship of this, adds BBVA SAB, is that the SANCTION RESOLUTION does not indicate which is, in its opinion, the “sufficient” content of the OPM in what refers to the verification of the quality of institutional investors; (xvi) Therefore, it adds in its statement of allegations that the last paragraph of Annex 1 of the INSTITUTIONAL INVESTORS REGULATION, regarding the application and implementation of procedures to verify the quality of institutional investor, must be read in an integral and concordant manner with the immediately preceding paragraph. In that sense, BBVA SAB alleges that an integral reading of said paragraphs allows concluding that the verification of the quality of institutional investor must be carried out, at least, with the subscription by the investor of a declaration in which it manifests having knowledge of the scope of said qualification and having such condition; (xvii) Without prejudice to the above, BBVA SAB indicates that in case the SMV considers that the sworn declarations are not sufficient to document the verification, it must modify the regulation in order to clearly establish the criterion that the intermediation agents and other participants of the Institutional Investors Market must follow. However, BBVA SAB indicates that such new demands cannot be implemented through an administrative sanctioning procedure, nor can the intermediation agent be sanctioned for the “non-compliance” with an obligation that does not currently exist in the regulation; (xviii) It adds that the SANCTION RESOLUTION also affects the principle of reasonableness since, contrary to what is stated in the previous considering, a precedent is being created that through a sanctioning procedure the SASP can determine additional requirements to those indicated in the regulation for the verification by the intermediation agents of the quality of institutional investors of their clients, which is not only illegal but also lacks reasonableness; (xix) Due to all the above, BBVA SAB requests that the administrative sanctioning procedure be archived in what refers to the serious infraction, typified in Annex I, item 2, numeral 2.31 of the SANCTIONS REGULATION, since, it corresponds to apply the exemption of responsibility established in letter f) of article 27 of the SANCTIONS REGULATION, as well as to revoke the corrective measure imposed by the SANCTION RESOLUTION;
II. EVALUATION OF THE APPEAL
2.1. Formal requirements of the appeal
8. That, in accordance with what is provided for in item 109.1 of article 109 of the LPAG, in front of an «act that implies that it violates, affects, disregards or harms a right or a legitimate interest, its contradiction in the administrative route proceeds in the form provided for in this Law, so that it is revoked, modified, annulled or its effects are suspended»;
9. That, regarding this, article 207 of the LPAG
provides that administrative resources are of reconsideration and of appeal; and that their filing must be raised within the deadline of fifteen (15) peremptory days. In a

PERU Ministry of Economy and Finance

SMV
Securities Market
Superintendence
Electronically signed document in the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and authorship complementary manner, item 134.1 of article 134 of the LPAG 2 provides that when the deadline is indicated by days, it will be understood as consecutive business days, excluding from the computation those non-working days of the service, and the non-working holidays of national or regional order;
10. That, in addition to the above, articles 113
,
209 4 and 211 5 of the LPAG provide the requirements that the appeal must meet;
11. That, now well, from the evaluation carried out based on said legal framework, it has been verified that the appeal filed by BBVA SAB meets the requirements established in articles 113, 207, 209 and 211 of the LPAG, since it was filed within the deadline of fifteen (15) business days from notified the administrative act, it is founded on issues of pure law and meets the other requirements established by the regulation, so it corresponds to issue an opinion on the foundations of the same;
12. That, it must be highlighted, that the appeal of BBVA SAB only contains arguments referred to the serious infraction typified in Annex I, item 2, numeral 2.31 of the SANCTIONS REGULATION, due to this this Office concludes that BBVA SAB is not challenging the commission of the serious infraction typified in Annex X, item 2, numeral 2.16 of the SANCTIONS REGULATION, so that said infraction has become final. It must be taken into account that such conclusion is in accordance with what is stated in the appeal of BBVA SAB regarding that said appeal is filed “specifically in what refers

1
Article 230. Principles of the administrative sanctioning power
The sanctioning power of all entities is additionally governed by the following special principles:
(…)
4. Typicity.- Only conduct that are administratively sanctionable infractions are those expressly provided for in laws with the rank of law through their typification as such, without admitting extensive interpretation or analogy. The regulatory development provisions may specify or grade those directed to identify the conduct or determine sanctions, without constituting new sanctionable conduct to those legally provided for, except in cases where the law or Legislative Decree allows typifying infractions by regulatory norm.

PERU Ministry of Economy and Finance

SMV
Securities Market
Superintendence
Electronically signed document in the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and authorship the SANCTION RESOLUTION also disregards the principle of due process, in what respects that the administered have the right to refute the charges imputed and adds that, although the SMV has the right to evaluate the content of the procedure, said evaluation cannot lead to dismissing its existence, since in the concrete case, what is being sanctioned through the SANCTION RESOLUTION is not the not having implemented the institutional investor identification procedure, but that the same is not to the satisfaction of the SASP, which, evidently, does not fit with the infraction type imputed in the CHARGES OFFICE; (ix) It points out, both in its statement of allegations and in its oral report, that the first administrative instance demands various implementations and procedures for its OPM that are not provided for in the regulation, and that additionally they are not materially possible to fulfill and indicates that such demands imply, for example, that it must collect certain documentation on the institutional investors, which by its nature is sensitive and reserved, which would imply that no brokerage agent company could comply with those demands and, therefore, would limit access to the market to investors who do comply (and declare to comply, in accordance with the regulation) with the regulatory requirements to be considered as institutional investors; (x) Regarding this, it alleges that it is the INSTITUTIONAL INVESTORS REGULATION itself that circumscribes the verification of the quality of institutional investors to at least (that is, in a sufficient manner) the obtaining of a sworn declaration for these effects. Due to the above, BBVA SAB points out that it is not correct what is stated in the SANCTION RESOLUTION regarding that BBVA SAB only “replicates some aspects of the regulatory framework”, since in the regulatory framework there are no other aspects that must be taken into account by the intermediation agents in the process of verifying that it is about institutional investors; (xi) Without prejudice to the above, it indicates, both in its statement of allegations and in its oral report, that the sworn declaration subscribed by its investors to participate in the Institutional Investors Market is not limited to the information indicated in the penultimate paragraph of Annex 1 of the INSTITUTIONAL INVESTORS REGULATION but that additional information is required as: i) the detail of their investments (specifying if it is about shares, mutual funds, investment funds, bonds, commercial paper and others), as well as a description of them and the market value of each one and, ii) other financial information, such as ownership of real estate, movable property and deposits. Likewise, BBVA SAB adds that the sworn declarations include a commitment by the investors
to update said information;

PERU Ministry of Economy and Finance

SMV
Securities Market
Superintendence
Electronically signed document in the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and authorship (xii) Therefore, it maintains that it is not that its OPM circumscribes the verification of the quality of institutional investors to the obtaining of a sworn declaration, but that it is the Annex 1 of the INSTITUTIONAL INVESTORS REGULATION itself that considers that said sworn declaration is sufficient for these effects. In that sense, it is not BBVA SAB nor the SASP that determines discretionarily if the sworn declaration is sufficient or not to carry out the aforementioned verification, but that it has been determined explicitly by the Annex 1 of the INSTITUTIONAL INVESTORS REGULATION itself:
“ANNEX 1
INSTITUTIONAL INVESTORS
(…)
Regarding the institutional investors detailed in numerales 4, 5 and 6 of this Annex, the verification carried out must be documented at least with the sworn declaration subscribed by said investors, in which they manifest: (i) knowledge of the scope of said qualification; and (ii) having such condition.
The intermediation agents that act as placement agent must implement and apply diligently procedures, in order that the investors who participate in this market are exclusively institutional investors. In case that the issuers carry out the placement of securities, they must ensure to have the sworn declarations referred to in the preceding paragraph. For such effect, as appropriate, they must keep an internal register of the institutional investors that participate in the placement of said securities.” (Underlining emphasized by BBVA SAB). (xiii) In accordance with the above, BBVA SAB points out that it is the regulation of the matter itself, that determines that the obtaining of the sworn declaration is sufficient to carry out the verification of the quality of institutional investor, so that any additional verification to this is at the criterion of the intermediation agent itself, so that the SANCTION RESOLUTION infringes the principle of legality; since, it contradicts what is stated in the Annex I of the INSTITUTIONAL INVESTORS REGULATION itself, regarding what results a sufficient verification of the quality of institutional investor; (xiv) In that sense, it indicates in its statement of allegations that in the REPORT it is not indicated which would be, in the opinion of the Legal Advisory Office, the additional verification procedures of the quality of institutional investor that should be implemented to comply with the regulation, and this is so because the regulation has not established additional procedures to the obtaining of, at least, the sworn declaration; (xv) Likewise, it maintains that the principle of predictability is affected since the SANCTION RESOLUTION is considering that the requirements established by the regulation itself are not sufficient, which generates legal insecurity regarding the fulfillment of the obligations of the administered. Proof

PERU Ministry of Economy and Finance

SMV
Securities Market
Superintendence
Electronically signed document in the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and authorship of this, adds BBVA SAB, is that the SANCTION RESOLUTION does not indicate which is, in its opinion, the “sufficient” content of the OPM in what refers to the verification of the quality of institutional investors; (xvi) Therefore, it adds in its statement of allegations that the last paragraph of Annex 1 of the INSTITUTIONAL INVESTORS REGULATION, regarding the application and implementation of procedures to verify the quality of institutional investor, must be read in an integral and concordant manner with the immediately preceding paragraph. In that sense, BBVA SAB alleges that an integral reading of said paragraphs allows concluding that the verification of the quality of institutional investor must be carried out, at least, with the subscription by the investor of a declaration in which it manifests having knowledge of the scope of said qualification and having such condition; (xvii) Without prejudice to the above, BBVA SAB indicates that in case the SMV considers that the sworn declarations are not sufficient to document the verification, it must modify the regulation in order to clearly establish the criterion that the intermediation agents and other participants of the Institutional Investors Market must follow. However, BBVA SAB indicates that such new demands cannot be implemented through an administrative sanctioning procedure, nor can the intermediation agent be sanctioned for the “non-compliance” with an obligation that does not currently exist in the regulation; (xviii) It adds that the SANCTION RESOLUTION also affects the principle of reasonableness since, contrary to what is stated in the previous considering, a precedent is being created that through a sanctioning procedure the SASP can determine additional requirements to those indicated in the regulation for the verification by the intermediation agents of the quality of institutional investors of their clients, which is not only illegal but also lacks reasonableness; (xix) Due to all the above, BBVA SAB requests that the administrative sanctioning procedure be archived in what refers to the serious infraction, typified in Annex I, item 2, numeral 2.31 of the SANCTIONS REGULATION, since, it corresponds to apply the exemption of responsibility established in letter f) of article 27 of the SANCTIONS REGULATION, as well as to revoke the corrective measure imposed by the SANCTION RESOLUTION;
II. EVALUATION OF THE APPEAL
2.1. Formal requirements of the appeal
8. That, in accordance with what is provided for in item 109.1 of article 109 of the LPAG, in front of an «act that implies that it violates, affects, disregards or harms a right or a legitimate interest, its contradiction in the administrative route proceeds in the form provided for in this Law, so that it is revoked, modified, annulled or its effects are suspended»;
9. That, regarding this, article 207 of the LPAG
provides that administrative resources are of reconsideration and of appeal; and that their filing must be raised within the deadline of fifteen (15) peremptory days. In a

PERU Ministry of Economy and Finance

SMV
Securities Market
Superintendence
Electronically signed document in the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and authorship complementary manner, item 134.1 of article 134 of the LPAG 2 provides that when the deadline is indicated by days, it will be understood as consecutive business days, excluding from the computation those non-working days of the service, and the non-working holidays of national or regional order;
10. That, in addition to the above, articles 113
,
209 4 and 211 5 of the LPAG provide the requirements that the appeal must meet;
11. That, now well, from the evaluation carried out based on said legal framework, it has been verified that the appeal filed by BBVA SAB meets the requirements established in articles 113, 207, 209 and 211 of the LPAG, since it was filed within the deadline of fifteen (15) business days from notified the administrative act, it is founded on issues of pure law and meets the other requirements established by the regulation, so it corresponds to issue an opinion on the foundations of the same;
12. That, it must be highlighted, that the appeal of BBVA SAB only contains arguments referred to the serious infraction typified in Annex I, item 2, numeral 2.31 of the SANCTIONS REGULATION, due to this this Office concludes that BBVA SAB is not challenging the commission of the serious infraction typified in Annex X, item 2, numeral 2.16 of the SANCTIONS REGULATION, so that said infraction has become final. It must be taken into account that such conclusion is in accordance with what is stated in the appeal of BBVA SAB regarding that said appeal is filed “specifically in what refers

“Article 134.- Passage of the Term
134.1 When the term is specified in days, it shall be understood as consecutive business days, excluding from the calculation those non-working days of the service, and national or regional non-working holidays.
(…)”
“Article 113.- Requirements of Written Submissions Any written submission presented to any entity must contain the following:

Full names and surnames, address, and National Identity Document number or foreigner’s ID card of the administrative party, and, where applicable, the capacity of representative and the person being represented.
The specific expression of what is requested, the factual grounds supporting it, and, when possible, the legal grounds.
Place, date, signature or digital fingerprint, in case of not knowing how to sign or being unable to do so.
The indication of the body, entity, or authority to which it is addressed, understood as such, insofar as possible, the authority of the grade closest to the user, according to the hierarchy, with competence to hear and resolve it.
The address of the place where notifications of the procedure are desired to be received, when different from the actual address stated in item 1. This designation of address takes effect from its indication and is presumed subsistent, unless its change is expressly communicated. Likewise, the email address or, if applicable, the electronic mailbox, in accordance with Article 20 of this law.
The list of documents and attachments accompanying it, indicated in the TUPA.
The identification of the file on the matter, in the case of procedures already initiated.”
“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 may elevate the proceedings to the hierarchical superior.”
“Article 211.- Requirements of the Appeal
Once the terms for filing administrative appeals have expired, the right to articulate them will be lost, leaving the act firm.”

PERU Ministry of Economy and Finance

SMV
Securities Market
Superintendency
Electronically signed document in the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and the authorship are subject to the sanction typified in Annex I, item 2, numeral 2.31 of the Sanctions Regulation”;
2.2. Evaluation of the arguments of the appeal
13. That, in accordance with what was indicated in consideration 70
of the SANCTION RESOLUTION 6
, the review of the MPO of BBVA SAB by the SASP was carried out as a consequence of the evaluation of a sample of operations with financial instruments issued by Desarrolladora del Pacífico S.A.C. in the framework of the INSTITUTIONAL INVESTORS REGULATION and in which BBVA SAB participated as placement agent. Within said evaluation, the SASP indicates that it verified that BBVA SAB had not implemented in its MPO, in relation to the primary placement of securities in the local market, the procedures to be followed in order to verify that the investors who participate in placement operations as institutional are exclusively such;
14. That, regarding this, BBVA SAB alleges that the exemption from liability established in letter f) of article
27 of the SANCTIONS REGULATION applies to its case, because before the notification of the NOTICE OF CHARGES it complied with updating its MPO in section 7.1, referred to as “Customer Segmentation”, which, BBVA SAB adds, collects the procedure to be followed in primary placements directed to institutional investors to verify that the investors who wish to participate meet said condition;
15. That, it must be taken into account that letter f) of
article 27 of the SANCTIONS REGULATION, in force at the time the facts
occurred, stated textually as follows:
“Article 27.- EXEMPTIONS FROM LIABILITY FOR INFRACTIONS The following constitute conditions exempting from liability for infractions:
(…) f) The voluntary remediation by the possible sanctioned party of the act or omission attributed as constitutive of an administrative infraction, prior to the notification of the imputation of charges referred to in item 3) of article 253 of the LPAG and provided that no communication demanding the fulfillment of the obligation 7 had been issued.”

“70. As a consequence of the review carried out on a sample of operations with financial instruments issued in the framework of the INSTITUTIONAL INVESTORS REGULATION, a certain sample of natural persons who acquired the corporate bonds issued by Desarrolladora del Pacífico S.A.C. in the primary placement in the local market carried out on February 13, 2020, in which BBVA SAB participated as placement agent, was analyzed; it was possible to verify that said broker society, in accordance with what is established in Annex 1 of the INSTITUTIONAL INVESTORS REGULATION and in Annex C, letter b) of the RAI, had not implemented in its MPO, in relation to the primary placement of securities in the local market, the procedures to be followed in order to verify that the investors who participate in placement operations as institutional are exclusively such;” 7 The current wording of letter f) of article 27 of the Sanctions Regulation, modified by article 1 of Superintendent Resolution No. 061-2022-SMV/02 published on June 23, 2022, states textually as follows:
“Article 27.- EXEMPTIONS FROM LIABILITY FOR INFRACTIONS The following constitute conditions exempting from liability for infractions:

PERU Ministry of Economy and Finance

SMV
Securities Market
Superintendency
Electronically signed document in the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and the authorship
16. That, in accordance with the foregoing, this Office appreciates
that for the application of the exemption from liability indicated in letter f) of
article 27 of the SANCTIONS REGULATION it is required that the administrative party has
voluntarily remedied the act or omission attributed as constitutive of an administrative infraction, prior to the imputation of the charges and provided that no communication demanding the fulfillment of the obligation corresponding had been issued;
17. That, in the particular case of BBVA SAB, it is appreciated
that this intermediary agent carried out an update of its MPO on November 25 of 2021, that is, prior to the notification of the NOTICE OF CHARGES, as recognized in the SANCTION RESOLUTION;
18. That, in that sense, for the purpose of determining if
it corresponds to apply the exemption from liability indicated in letter f) of article 27 of the SANCTIONS REGULATION, it must be evaluated if with said modification of its MPO carried out on November 25, 2021, BBVA SAB complied with remedying the infraction in which it incurred;
19. That, regarding this, it must be taken into account that the
offender type attributed to BBVA SAB in the NOTICE OF CHARGES is not referred to, as the company states, only to having implemented or not a procedure for verifying institutional investors in its MPO, but that such implementation has been carried out in accordance with the regulations of the matter:
“ANNEX I
Of the General Infractions
(…)
2.- Serious
(…)
2.31 Not having, approving, implementing, updating, nor complying with, or modifying without
communicating it to the SMV, in accordance with the regulations of the matter, the Manual of Integrated Risk Management, or the Valuation Manual or the Valuation Methodology, or the Manual of Prevention of Money Laundering and of Terrorism Financing or any other manual.
(…).”. (Underline added).
20. That, in the specific case of BBVA SAB, Annex 1 of the INSTITUTIONAL INVESTORS REGULATION states as follows:

(…) f) The voluntary remediation by the possible sanctioned party of the act or omission attributed as constitutive of an administrative infraction, prior to the notification of the imputation of charges referred to in the LPAG and provided that no communication demanding the fulfillment of the obligation had been issued.”

PERU Ministry of Economy and Finance

SMV
Securities Market
Superintendency
Electronically signed document in the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and the authorship “ANNEX 1 INSTITUTIONAL INVESTORS The following persons are institutional investors for all effects of this Regulation:
(…)
6. Natural persons who have a net worth greater than two million
New Soles (S/. 2,000,000.00), and a portfolio of investments in securities equal to or greater than one million New Soles (S/. 1,000,000.00).
(…)
With respect to the institutional investors detailed in items 4, 5 and 6 of this Annex, the verification carried out must be documented at least with the sworn declaration signed by said investors, in which they declare: (i) knowledge of the scope of said qualification; and (ii) having such condition.
The intermediary agents who act as placement agents must implement and apply diligently procedures, in order for the investors who participate in this market to be exclusively institutional investors. In case the issuers carry out the placement of securities, they must ensure to have the sworn declarations referred to in the preceding paragraph. For this purpose, as appropriate, they must keep an internal register of the institutional investors who participate in the placement of said securities.” (Underline added)
21. That, in that sense, this Office appreciates that the
penultimate paragraph of Annex 1 of the INSTITUTIONAL INVESTORS REGULATION requires that for certain cases of persons who qualify as institutional investors (items 4, 5 and 6 of Annex 1), the verification carried out must be documented with at least the sworn declaration signed by said investors, in which they declare: (i) knowledge of the scope of said qualification; and (ii) having such condition. Furthermore, the last paragraph of said Annex 1 indicates that the agents of intermediation, who act as placement agents, such as in the case of BBVA SAB, must implement and apply diligently procedures, in order for the investors who participate in this market to be exclusively institutional investors;
22. That, as can be seen in the specific case
of intermediary agents who act as placement agents, in addition to the sworn declaration that must be obtained, it is required that they implement and apply procedures in order for the investors who participate in this market to be exclusively institutional investors;
23. That, therefore, in accordance with what was sustained by BBVA
SAB, the last paragraph of Annex 1 of the INSTITUTIONAL INVESTORS REGULATION must be read jointly with the penultimate paragraph of said annex. However, a joint and integral reading of said paragraphs cannot lead to the conclusion that it was sufficient to comply with the implementation in the MPO, the obtaining of the

PERU Ministry of Economy and Finance

SMV
Securities Market
Superintendency
Electronically signed document in the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and the authorship sworn declaration in which the investor declares having the quality of institutional investor, since accepting such interpretation would empty the content of the additional requirement for the case of intermediary agents established in the last paragraph of Annex 1 of the INSTITUTIONAL INVESTORS REGULATION, because it would not contribute to the intermediary agent any additional obligation to the obtaining of the sworn declaration already required in the penultimate paragraph of said Annex 1;
24. That, likewise, the argument of BBVA SAB that
any additional verification procedure to the obtaining of the sworn declaration would be at the discretion of the intermediary agent, is not entirely accurate, taking into account that the last paragraph of Annex 1 of the INSTITUTIONAL INVESTORS REGULATION states that intermediary agents who act as placement agents must have and apply diligently their procedures;
25. That, it must be taken into account that the SMV has not
established, through the present sanctioning procedure, additional requirements to the content of the MPO of BBVA SAB that are not indicated in the regulations, on the contrary the verification procedures that the intermediary agent must implement, who acts as a placement agent in the framework of the INSTITUTIONAL INVESTORS REGULATION , such as in the case of BBVA SAB, are an expressly established requirement by the last paragraph of Annex 1 of said regulation;
26. That, in that sense, neither the SANCTION RESOLUTION
nor the REPORT indicated that BBVA SAB had to implement a specific verification procedure of the quality of institutional investor, but rather what has been verified, objectively, is that BBVA SAB did not develop verification procedures of the quality of institutional investors additional to the obtaining of the sworn declaration, which generally, is already required by the penultimate paragraph of Annex 1 of the INSTITUTIONAL INVESTORS REGULATION , thus failing to comply with the requirement of the last paragraph of said Annex, applicable in its capacity as placement agent in this market;
27. That, regarding the argument of BBVA SAB that the sworn declaration it asks its investors to sign contains more information than that indicated in the penultimate paragraph of Annex 1 of the INSTITUTIONAL INVESTORS REGULATION
, it must be indicated that although the additional content of information is recognized, said document continues to be a declaration of part that does involve an additional verification procedure by BBVA SAB. In that sense, this Office shares what was stated textually in consideration 83 of the SANCTION RESOLUTION:
“83. For BBVA SAB, the verification of compliance with the sworn declaration is sufficient to accredit a natural person as an institutional investor; accepting this fact would shift the diligence to the person who participates and not to the intermediary agent. In addition to this, validating this scenario leads to the fact that any person, with insufficient net worth or without an investment portfolio, including a person who has no knowledge of the securities market, could with only signing a sworn declaration, participate in the institutional investors market, a market exclusive to persons who, by their nature, characteristics or knowledge, understand,

PERU Ministry of Economy and Finance

SMV
Securities Market
Superintendency
Electronically signed document in the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and the authorship manage and evaluate adequately the risks associated with their investment decisions;” (Underline added).
28. That, in effect, the last paragraph of the INSTITUTIONAL INVESTORS REGULATION is clear in stating that it corresponds to the intermediary agent who acts as a placement agent to implement and apply diligently procedures, in order for the investors who participate in said market, to be exclusively those who have the condition of institutional investors. In such a way that limiting oneself to documenting the sworn declaration (even if its content is greater than that indicated in the penultimate paragraph of Annex 1 of the INSTITUTIONAL INVESTORS REGULATION), would not contribute any additional measure of diligence and would imply only transferring the responsibility of the placement agent to the investors who sign said declaration;
29. That, therefore, this Office considers that the
procedure developed by BBVA SAB in the update of its MPO does not comply with what is established by the regulations, since it only collects the obtaining of a sworn declaration by the investor, in a manner similar to that required by the penultimate paragraph of Annex 1 of the INSTITUTIONAL INVESTORS REGULATION;
30. That, due to the foregoing, the principle of reasonableness is not affected, since it is not observed that the SANCTION RESOLUTION has established additional requirements to that indicated by Annex 1 of the INSTITUTIONAL INVESTORS REGULATION for the implementation of the verification procedure that intermediary agents must have, but rather that BBVA SAB is only required to have said procedure in its MPO in accordance with the regulations of the matter and not that it only documents the signing of a sworn declaration by the potential investor, in a manner similar to that already required by the penultimate paragraph of Annex 1 of the INSTITUTIONAL INVESTORS REGULATION;
31. That, likewise, the principle of due process is not affected either since the charges were imputed from the beginning to BBVA SAB in the NOTICE OF CHARGES and have not been varied or modified during the course of the present sanctioning procedure, being that these are referred to not having implemented in its MPO a procedure for verifying institutional investors in accordance with what is required by the regulations of the matter;
32. That, finally, the principle of legality has not been infringed either since the type by which BBVA SAB has been sanctioned is referred precisely to not having implemented its MPO in accordance with what is required by the regulations of the matter, in this specific case in accordance with what is indicated by Annex 1 of the INSTITUTIONAL INVESTORS REGULATION which requires that intermediary agents, who act as placement agents, such as in the case of BBVA SAB, must implement and apply diligently procedures, in order for the investors who participate in this market to be exclusively institutional investors;
33. That, due to the foregoing, the exemption from liability established in letter f) of article 27 of the SANCTIONS REGULATION does not apply, since BBVA SAB has not complied with remedying the infraction

PERU Ministry of Economy and Finance

SMV
Securities Market
Superintendency
Electronically signed document in the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and the authorship administrative in which it incurred, prior to the notification of the NOTICE OF CHARGES;
34. That, in accordance with what was developed and analyzed
above, it corresponds to confirm the SANCTION RESOLUTION; and, consequently, to dismiss the appeal filed by BBVA SAB; and, Being in accordance with what is provided in item 26 of article 12° of the Regulation of Organization and Functions of the Securities Market Superintendency, approved by Supreme Decree No. 216-2011-EF and its amendments; RESOLVES:
Article 1°.- Declare unfounded the appeal filed
by BBVA Bolsa Sociedad Agente de Bolsa S.A. against the Adjunct Superintendent Resolution SMV No. 013-2023-SMV/10.
Article 2°.- Declare the administrative route exhausted.
Article 3°.- Transmit this resolution to BBVA
Bolsa Sociedad Agente de Bolsa S.A. and to the Lima Stock Exchange S.A.
Article 4°.- Order the publication of this
resolution on the Institutional Page of the Securities Market Superintendency 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

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