PERÚ Ministerio de Economía y Finanzas
SMV
Superintendencia del Mercado de Valores

“Decade of Equal Opportunities for Women and Men” "Year of the Bicentennial, of the consolidation of our Independence, and of the commemoration of the heroic battles of Junín and Ayacucho"

Superintendent's Resolution No. 037-2024-SMV/02

Lima, 1 April 2024

The Superintendent of the Securities Market

WHEREAS:

File No. 2023005218, and Report No. 271-2024- SMV/06 issued by the Legal Advisory Office;

CONSIDERING:

That, by Deputy Superintendent Resolution SMV No. 065-2023-SMV/10, hereinafter RESOLUTION, the Deputy Superintendency of Prudential Supervision, hereinafter SASP resolved:

(i) Declare that Autoplan Empresa Administradora de Fondos Colectivos S.A. (hereinafter, AUTOPLAN) incurred in one (01) infraction of a serious nature, typified in numeral 2 of subsection 2.16 of Annex XIII of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01 (hereinafter, SANCTIONS REGULATION), for failing to return the contributions of an associate within a period of five (5) business days from the presentation of their request;

(ii) Sanction AUTOPLAN, with a fine of 4.5 UIT, in force at the time of effective payment of the fine for the commission of the infraction referred to in the preceding subsection;

That, by Report No. 271-2024-SMV/06 of 1 March 2024, hereinafter, the REPORT, the Legal Advisory Office issued an opinion on the appeal filed by AUTOPLAN. Said report was brought to the attention of AUTOPLAN by Official Letter No. 892-2024-SMV/14 of 5 March 2024, so that, if it deems it appropriate, it may formulate its arguments, which to date have not been formulated;

I. ARGUMENTS OF THE APPEAL

That, below, the arguments contained in the appeal filed by AUTOPLAN are succinctly presented:

That, AUTOPLAN reiterates that it acknowledges its responsibility regarding the charge imputed in the present administrative sanctioning procedure; therefore, it was appropriate to apply Article 2571 of the Single Ordered Text of

[1] “Article 257.- Exemptions and mitigating circumstances of responsibility for infractions 1.- The following constitute conditions exempting from responsibility for infractions: a) The duly proven fortuitous event or force majeure. b) Acting in compliance with a legal duty or the legitimate exercise of the right of defense.

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the Law No. 27444, General Administrative Procedure Law (hereinafter TUO LPAG, as well as literals a) and b) of Article 26 of the SANCTIONS REGULATION2 ;

That, AUTOPLAN additionally to the indicated mitigating factors, states that it considers itself in the case of literal c) of Article 26 of the SANCTIONS REGULATION3 , taking into account that it contributed to the clarification of the infraction, since it proceeded to fully remedy the conduct in question, consisting of the return of contributions in favor of its associate. Likewise, it mentions that the associate has presented a withdrawal of their complaint; since it reached a conciliatory agreement with her;

That, therefore, it requests that its acknowledgment of responsibility, its contribution to the clarification of the infraction and the remediation carried out after the payment request be considered as mitigating factors, in accordance with the provisions of Article 26° of the SANCTIONS REGULATION and Article 257° of the TUO LPAG; being that, the imposed fine must be mitigated by at least 50%;

II. ANALYSIS OF THE ADMISSIBILITY OF THE APPEAL

[2] c) The mental incapacity duly proven by the competent authority, provided that it affects the aptitude to understand the infraction. d) The mandatory order of competent authority, issued in the exercise of its functions. e) The error induced by the Administration or by a confusing or illegal administrative provision. f) The voluntary remediation by the possible sanctioned party of the act or omission imputed as constituting an administrative infraction, prior to the notification of the imputation of charges referred to in subsection 3) of Article 255. 2.- The following constitute mitigating conditions of responsibility for infractions: a) If, once an administrative sanctioning procedure has been initiated, the offender acknowledges their responsibility expressly and in writing. In cases where the applicable sanction is a fine, it is reduced to an amount not less than half of its amount. b) Others established by special norm.”

[3] 2 “Article 26.- MITIGATING CIRCUMSTANCES OF RESPONSIBILITY The following constitute mitigating conditions of responsibility for infractions: a) Acknowledgment of responsibility by the offender expressly and in writing, once the administrative sanctioning procedure has been initiated. When the applicable sanction is a fine, it is reduced, taking into account the following: 1. If the acknowledgment of the infraction is presented within the period granted for the presentation of defenses, the reduction amount shall be fifty percent (50%). 2. If the acknowledgment is presented after the expiration of the period granted for the presentation of defenses and before the expiration of the period granted to formulate arguments to the instruction report, the reduction amount shall be thirty percent (30%). 3. If the acknowledgment is presented after the expiration of the period granted to formulate arguments to the instruction report and up to before the issuance of the sanction resolution, the reduction amount shall be ten percent (10%). The acknowledgment of responsibility regarding an infraction must be made precisely, concisely, clearly, expressly, and unconditionally, and must not contain ambiguous or contradictory expressions; otherwise, it will not be understood as an acknowledgment. If defenses are submitted, despite having made an acknowledgment of responsibility, it will be understood as a non-acknowledgment, and the authority shall proceed to evaluate the defenses. b) Contribution of the offender to the clarification of the infraction.”

[3] “Article 26.- MITIGATING CIRCUMSTANCES OF RESPONSIBILITY The following constitute mitigating conditions of responsibility for infractions: (…) c) The rectification made after its requirement or the initiation of the administrative sanctioning procedure.”

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That, from the evaluation carried out, it has been verified that the appeal filed by AUTOPLAN complies with the requirements established in articles 2184, 2205 and 2216 of the TUO LPAG;

III. EVALUATION OF THE ARGUMENTS SET FORTH IN THE APPEAL

That, regarding what was stated by AUTOPLAN, in the sense that the mitigating circumstances provided in literals a), b) and c) of article 26 of the SANCTIONS REGULATION should be applied, it must be specified that from the review of the RESOLUTION, it is verified that these aspects were subject to analysis as stated in the recitals of the RESOLUTION, which are mentioned below:

“41. In addition to the foregoing, it is appropriate to analyze the exempting and mitigating circumstances of responsibility established in article 257° of the TUO OF THE LPAG as well as the mitigating and exempting conditions of responsibility established in articles 26° and 27° of the SANCTIONS REGULATION;

42. Regarding the voluntary declaration of the commission of the infraction, the contribution of the offender to its clarification and the rectification made after its requirement, established in article 257°, numeral 2, subparagraph a) of the TUO OF THE LPAG and in article 26°, literals a), b) and c) of the SANCTIONS REGULATION, it must be noted that AUTOPLAN EAFC acknowledged its responsibility for the infraction incurred expressly and in writing, after the deadline granted to formulate7 allegations to the instruction report, precisely, concisely, clearly, expressly and unconditionally, without ambiguous or contradictory expressions;8

43. On the other hand, it must be noted that AUTOPLAN EAFC has not submitted defenses, only arguments regarding the acknowledgment, therefore it has not hindered the clarification of the infractions committed;

44. Regarding what was alleged by AUTOPLAN EAFC that it rectified the conduct consisting of the return of contributions in favor of (…) and requests the application of the mitigating condition referring to the rectification made after

[4] Article 218.- Administrative appeals 218.1 The administrative appeals are: a) Appeal for reconsideration b) Appeal for appeal Only in case that by law or legislative decree the filing of the administrative appeal for review is expressly established, it is possible. 218.2 The term for filing appeals is fifteen (15) peremptory days, and they must be resolved within thirty (30) days.

[5] Article 220.- Appeal The appeal shall be filed when the challenge is based on a different interpretation of the evidence produced or when it involves questions of pure law, and must be addressed to the same authority that issued the act being challenged so that it elevates the proceedings to the hierarchical superior.

[6] Article 221.- Requirements of the appeal The appeal brief must state the act being appealed and comply with the other requirements provided in article 124.

[7] It must be noted that the deadline to submit defenses expired on 14/02/2023; however AUTOPLAN EAFC did not submit defenses. By Official Letter No. 2714-2023-SMV/10, notified on 15/06/2023, the administrator is granted a period of five (5) business days to formulate allegations to the instruction report, a period that expired on 22 June 2023, notwithstanding this, AUTOPLAN EAFC submits written arguments on 23 June 2023.

[8] Sanctions Regulation, article 26, literal a., numeral 3. “If the acknowledgment is submitted after the expiration of the deadline granted to formulate allegations to the instruction report and up to before the issuance of the sanction resolution, the reduction amount shall be ten percent (10%).”

after its requirement or the initiation of the administrative sanctioning procedure, contained in literal c) of article 26° of the SANCTIONS REGULATION, it must be specified that in this administrative procedure the conduct subject to sanction, for which AUTOPLAN EAFC makes such allegation, is not only referred to the fact of the return of contributions, but to the non-compliance with the deadline to carry out the return of contributions in favor of (…) at the end of five (05) days from the presentation of its request. Therefore, the mitigating circumstance of sanction established in literal c) of article 26° of the SANCTIONS REGULATION is not applicable; On the other hand, it is not observed that in the present case any of the assumptions that constitute exempting conditions of responsibility indicated in article 27° of the SANCTIONS REGULATION has been configured;

45. Regarding the exemption for voluntary rectification, it should be noted that although AUTOPLAN EAFC complied with returning the respective principal installments (...), this was in response to the complaint filed by said member before this Deputy Superintendency and the management of the Investor Ombudsman of the SMV before said administrator, forwarding the request of (...) consisting of the attention of its request for the return of contributions, so a voluntary rectification of the act constituting the infraction by AUTOPLAN EAFC is not configured;

That, in that sense, from the foregoing it is verified that the RESOLUTION ruled on the mitigating circumstances of liability provided for in subparagraphs a), b) and c) of article 26 of the SANCTIONS REGULATION;

That, additionally, it should be noted that in the appeal, AUTOPLAN has not specified the documentation and/or information submitted to the Superintendency of the Securities Market – SMV that has contributed to the clarification of the infractions committed;

That, consequently, we agree with what is stated in the RESOLUTION, in that it is not appropriate in the case analyzed to apply the mitigating circumstances of liability established in subparagraphs a), b) and c) of article 26 of the SANCTIONS REGULATION;

That, on the other hand, it is noted that the RESOLUTION applied to AUTOPLAN a sanction corresponding to a lower classification than that provided for serious infractions, by virtue of the principle of reasonableness, contemplated in article 248 numeral 39 of the TUO LPAG, which states that the sanctions to be applied must

[9] "Article 248.- Principles of the administrative sanctioning power The sanctioning power of all entities is additionally governed by the following special principles: (...) 3. Reasonableness.- The authorities must foresee that the commission of the sanctionable conduct is not more advantageous for the offender than complying with the infringed norms or assuming the sanction. However, the sanctions to be applied must be proportional to the non-compliance qualified as an infraction, observing the following criteria that are indicated for the purposes of their graduation: a) The illicit benefit resulting from the commission of the infraction; b) The probability of detection of the infraction; c) The severity of the damage to the public interest and/or protected legal interest; d) The economic harm caused; e) Recidivism, for the commission of the same infraction within the term of one (1) year from when the resolution that sanctioned the first infraction became final. f) The circumstances of the commission of the infraction; and g) The existence or not of intentionality in the conduct of the offender."

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be proportional to the non-compliance qualified as an infraction, also taking into account that there has been no impact on the market, it has not been possible to evidence intentionality in the conduct shown by AUTOPLAN in the imputed facts and the entirety of its principal installments was returned to the member; thus imposing on AUTOPLAN a fine applicable to minor infractions in accordance with the provisions of article 3910 of the SANCTIONS REGULATION;

That, based on the foregoing, it is concluded that the RESOLUTION is duly motivated and its grounds have not been disproven; 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. 065-2023-SMV/11.

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).

Zósimo Juan Pichihua Serna
Superintendent of the Securities Market

[10] "Article 39.- SANCTIONS FOR MINOR INFRACTIONS For the commission of minor infractions, one of the following sanctions is imposed on the offender: a) Warning; and, b) Fine not less than one (1) UIT nor more than twenty-five (25) UIT."

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"

Superintendent's Resolution No. 037-2024-SMV/02 declaring the appeal filed by Autoplan Empresa Administradora de Fondos Colectivos S.A. unfounded