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Superintendent's Resolution No. 021-2024-SMV/02

Lima, 4 March 2024

The Superintendent of the Securities Market

SEEN:

File No. 2022038498 and Report No. 228-2024-SMV/06 issued by the Office of Legal Advice;

CONSIDERING:

That, by Deputy Superintendent Resolution SMV No. 044-2023-SMV/10, hereinafter the RESOLUTION, the Deputy Superintendent of Prudential Supervision, hereinafter SASP, resolved to sanction Autoplan Empresa Administradora de Fondos Colectivos S.A. (AUTOPLAN) with a fine of four (04) UIT for having committed a serious infringement typified in Annex I, item 2, subsection 2.1 of the Sanctions Regulations, approved by SMV Resolution No. 035-2018-SMV/01 (hereinafter, SANCTIONS REGULATIONS), for failing to submit information requested by the Superintendency of the Securities Market (SMV) within the framework of preliminary inquiries;

That, by means of a written submission filed on 13 July 2023, AUTOPLAN filed an appeal against THE RESOLUTION;

That, by means of Report No. 228-2024-SMV/06 of 20 February 2024, hereinafter the REPORT, the Office of Legal Advice issued an opinion on the appeal filed by AUTOPLAN. Said report was made known to AUTOPLAN by means of Official Letter No. 711-2024-SMV/14 of 23 February 2024, so that, if it so considers, it may submit its arguments, which to date have not been submitted;

I. ARGUMENTS OF THE APPEAL

That, below, the arguments contained in the appeal filed by AUTOPLAN are briefly set out;

A. It reiterates that it acknowledged responsibility for the charge brought in this administrative sanctioning proceeding; consequently, it requests that the mitigating factor of subsection a) of Article 26 of the SANCTIONS REGULATIONS1 be applied.

[1] Article 26.- MITIGATING FACTORS OF RESPONSIBILITY The following constitute mitigating conditions of responsibility for infringements: a) Express and written acknowledgment of responsibility by the infringer, once the administrative sanctioning proceeding has been initiated. Where the applicable sanction is a fine, it shall be reduced, taking into account the following: 1. If the acknowledgment of the infringement is submitted within the period granted for the submission of defenses, the amount of the reduction shall be fifty percent (50%). (…) The acknowledgment of responsibility for an infringement must be made in a precise, concise, clear, express and unconditional manner, and must not contain ambiguous or contradictory expressions; otherwise, it shall not be understood as an acknowledgment. If defenses are submitted, despite having made an acknowledgment of responsibility, it shall be understood as a non-acknowledgment, and the authority shall proceed to evaluate the defenses”.

B. In addition to the mitigating factor indicated, it states that it considers itself to be within the case of subsection b) of Article 26 of the SANCTIONS REGULATIONS2, taking into account that it contributed to the clarification of the infringement.

II. ANALYSIS OF THE ADMISSIBILITY OF THE APPEAL

That, from the evaluation carried out, it has been verified that the appeal filed by AUTOPLAN meets the requirements established in Articles 124, 220 and 221 of the Single Ordered Text of Law No. 27444, Law of General Administrative Procedure (hereinafter, TUO LPAG);

That, in that sense, in the case analyzed it is verified that the filing of the appeal by AUTOPLAN was made within the legal period, complying with the provisions of Article 218 of the TUO LPAG;

III. EVALUATION OF THE ARGUMENTS PRESENTED BY AUTOPLAN

A. AUTOPLAN reiterates that the mitigating factor provided for in subsection a) of Article 26 of the SANCTIONS REGULATIONS aforementioned should be applied.

In this regard, it must be specified that, from a reading of the RESOLUTION, it is verified that said acknowledgment was taken into account by the first instance in the evaluation of administrative responsibility as recorded in the following CONSIDERATIONS of the RESOLUTION, which are quoted:

3.4 Evaluation of the defenses

13. The present analysis must begin by stating that Autoplan has expressly, concisely, clearly and unconditionally acknowledged, in accordance with the provisions of the regulations, its responsibility for the infringement charged;

14. In the present case, according to what is on file in this proceeding, it has been proven that, within the framework of the preliminary inquiries carried out in relation to the administrative complaint filed by the Complainant against Autoplan followed in File No. 2021031353, the administrator did not send to the SMV, within the period granted, the information requested by Official Letter No. 4392-2022-SMV/10.3; a request that was reiterated by e-mail dated 12 September 2022 and Official Letter No. 4635-2022-SMV/10.3;

(…)

33. From the foregoing, Autoplan has committed one (1) infringement classified as serious in Annex I, item 2, subsection 2.1 of the Sanctions Regulations, for which it is appropriate to impose a sanction corresponding to infringements classified as serious pursuant to Article 38 of the Sanctions Regulations, which are punishable by a fine of more than twenty-five (25) Tax Units (UIT) and up to fifty (50) UIT or prohibition of the formation of new groups; however, insofar as Autoplan has acknowledged the commission of the infringement, and has not obstructed the

[2] Article 26.- MITIGATING FACTORS OF RESPONSIBILITY The following constitute mitigating conditions of responsibility for infringements: (…) b) Contribution by the infringer to the clarification of the infringement.

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clarification of the same; it is appropriate to apply the provisions of article 26°, literals a), item 1) and b) of the Sanctions Regulations, whereby the fine for the infringement must range between 12.5 UIT and 25 UIT; that is, 50% of the range established for serious infringements;

In this regard, it has been verified that the RESOLUTION evaluated and applied the mitigating factor of responsibility alleged by AUTOPLAN, which is provided for in literal a) of article 26 of the SANCTIONS REGULATIONS.

B. AUTOPLAN also reiterates that it would be appropriate to apply the mitigating factor provided for in literal b) of article 26 of the SANCTIONS REGULATIONS, which establishes the following:

“Article 26.- MITIGATING FACTORS OF RESPONSIBILITY The following constitute mitigating conditions of responsibility for infringements: (…) b) Contribution of the infringer to the clarification of the infringement”.

Regarding this, it must be specified that upon review of the RESOLUTION, it is verified that said mitigating factor was considered in the evaluation of the determination of administrative liability as recorded in the following CONSIDERANDO OF THE RESOLUTION, which is quoted:

31. In relation to the voluntary declaration of the commission of the infringement and the contribution of the infringer to its clarification, established in article 257, item 2, subsection a) of the TUO of the LPAG and in article 26 of the Sanctions Regulations, it must be pointed out that Autoplan has expressly acknowledged its responsibility for the infringement committed, and has not obstructed its clarification;

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

C. On the other hand, it is noted that the RESOLUTION applied a sanction corresponding to a classification lower than that provided for serious infringements pursuant to article 25 of the SANCTIONS REGULATIONS3 .

Indeed, by means of the RESOLUTION, a fine of four (04) UIT was imposed on AUTOPLAN for having committed one (01) serious infringement typified in Annex I, item 2, subsection 2.1 of the SANCTIONS REGULATIONS, for not submitting information requested by the SMV within the framework of preliminary inquiries.

Now then, pursuant to article 29 of the SANCTIONS REGULATIONS4 , a serious infringement is punishable with a fine greater than twenty-five (25) and

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

[4] Article 29.- SANCTIONS FOR SERIOUS INFRACTIONS-For the commission of serious infractions, one of the following sanctions is imposed on the offender: a) Fine greater than twenty-five (25) UIT and up to fifty (50) UIT; and, b) Prohibition of the formation of new groups.

up to fifty (50) Tax Units (UIT) or with the prohibition of the formation of new groups; that is, in the hypothetical case of having imposed a sanction with the minimum amount, a sanction amounting to 25 UIT should be imposed on AUTOPLAN for the serious infraction subject to charge.

However, in the present sanctioning procedure, the SASP, in application of the principle of reasonableness contemplated in article 248, numeral 3 of the TUO OF THE LPAG, which states that sanctions must be proportional to the non-compliances qualified as infractions, imposed a sanction corresponding to a lower classification than that provided for serious infractions, in accordance with the provisions of 29 of the SANCTIONS REGULATION.

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

In addition to this, it is relevant to note that according to the documentation in this File and File No. 2021031353 containing the complaint, it is noted that, as of the date of issuance of this Resolution, the information that originated the imputation of charges was not sent to the SMV.

That, according to what has been developed and analyzed, it is considered that AUTOPLAN has not provided sufficient evidence to disprove the decision of the SASP, which is justified and duly motivated in the development of the RESOLUTION, because it is noted from the same, that the grounds leading to the conclusion that AUTOPLAN incurred the non-compliance imputed as a charge in this administrative sanctioning procedure have been validated, a fact that has also been expressly acknowledged by the administered; and,

In accordance with the provisions of numeral 26 of article 12 of the Regulation of Organization and Functions of the SMV, approved by Supreme Decree No. 216-2011-EF;

RESOLVES:

Article 1.- Declare unfounded the appeal filed by Autoplan Empresa Administradora de Fondos Colectivos S.A. against Deputy Superintendency Resolution SMV No. 044-2023-SMV/10.

Article 2.- Consider the administrative route exhausted.

Article 3.- Transcribe this resolution to Autoplan Empresa Administradora de Fondos Colectivos S.A.

Article 4.- Order the dissemination of this resolution on the Institutional Page of the Superintendency of the Securities Market on the Single Digital Platform of the Peruvian State (www.gob.pe/smv).

[5] Article 30.- SANCTIONS FOR MINOR INFRACTIONS For the commission of minor infractions, one of the following sanctions is imposed on the offender: a) Warning; or, b) Fine of no less than one (1) UIT nor more than twenty-five (25) UIT;

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PERU Ministry of Economy and Finance
SMV
Superintendency of the Market of Securities
"Decade of Equal Opportunities for Women and Men" "Year of the Bicentennial, of the consolidation of our Independence, and of the commemoration of the heroic battles of Junín and Ayacucho"

Register, communicate and publish.

Signed by: MASIAS QUIROGA Maria Lorena FAU 20131365994 soft

Lorena Masías Quiroga
Superintendent of the Securities Market

Signed by: VARGAS PIÑA Julio Cesar FAU 20131016396 soft

Signed by: GIL VASQUEZ Liliana FAU 20131016396 soft

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