PERU Ministry of Economy and Finance
SMV
Superintendency of the
Securities Market
"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. 039-2024-SMV/02

Lima, 1 April 2024

The Superintendent of the Securities Market

REVIEWED:

File No. 2022018067 and Report No. 329-2024-SMV/06 issued by the Office of Legal Advice, through which it issues an opinion on the appeal filed by Autoplan Empresa Administradora de Fondos Colectivos S.A. against Deputy Superintendent's Resolution SMV No. 004-2023-SMV/10;

CONSIDERING:

That, by Deputy Superintendent's Resolution SMV No. 004-2023-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 eight (8) UIT for having committed two infractions: One (1) infraction classified as serious as established in Annex XIII, numeral 2, subsection 2.16 of the Sanctions Regulations, approved by SMV Resolution No. 035-2018-SMV/01 (SANCTIONS REGULATIONS), for not having complied with the collective fund administration contract regarding the right of a member with a terminated contract to be notified of the date of the return of their contributions and to receive the corresponding return within the established period; and one (1) infraction classified as serious as established in Annex XIII, numeral 2, subsection 2.16 of the SANCTIONS REGULATIONS, for not having complied with the collective fund administration contract regarding addressing the complaint filed by a member within the established period.

That, by means of a document dated 24 February 2023, AUTOPLAN filed an appeal against THE RESOLUTION;

That, by means of Report No. 329-2024-SMV/06 of 13 March 2024, hereinafter the REPORT, the Office of Legal Advice issued an opinion on the appeal filed by AUTOPLAN. Said report was brought to the attention of AUTOPLAN by means of Official Letter No. 1052-2024-SMV/14 of 14 March 2024, so that, if it so considers, it may formulate its arguments, which to date have not been formulated;

I. ARGUMENTS OF THE APPEAL

That, below, the arguments set forth in the aforementioned appeal filed by AUTOPLAN are specifically stated:

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A. It reiterates that it acknowledged responsibility for the charges imputed in this administrative sanctioning procedure; consequently, it requests that article 257 of the CONSOLIDATED TEXT OF THE LPAG, 1 as well as the mitigating factors of subsections a) and b) of article 26 of the SANCTIONS REGULATIONS 2 be applied.

B. It argues that it falls within the case of subsection c) of article 26 of the SANCTIONS REGULATIONS 3, taking into consideration that it proceeded to fully remedy the conduct in question, consisting of: (i) the return of contributions in favor of our member, carried out on 23 July 2021 and (ii) providing a response to her complaint, carried out on 17 September 2020.

C. Finally, it states that if the mitigating factors of: acknowledgment of responsibility, its contribution to the clarification of the infraction, and the remediation carried out after the payment requirement are considered, then the fine imposed by the SASP must be reduced by a minimum of 50%.

II. ANALYSIS OF THE ADMISSIBILITY OF THE APPEAL

That, from the evaluation carried out in accordance with the documents of this file, the appeal filed meets the requirements established in articles 218 4, 220 5 and 221 6 of the Consolidated Text of the General Administrative Procedure Law, approved by Supreme Decree No. 004-2019-JUS (hereinafter, CONSOLIDATED TEXT OF THE LPAG), and was filed within the period of fifteen (15) business days counted from the notification of THE RESOLUTION.

[1] Article 257.- Exemptions and mitigating factors of responsibility for infractions (…) 2. The following constitute mitigating conditions of responsibility for infractions a) If, once an administrative sanctioning procedure has been initiated, the offender expressly and in writing acknowledges their responsibility. In cases where the applicable sanction is a fine, it shall be reduced to an amount not less than half of its value.

[2] Article 26.- MITIGATING FACTORS OF RESPONSIBILITY The following constitute mitigating conditions of responsibility for infractions: a) Acknowledgment of responsibility by the offender in an express and written manner, once the administrative sanctioning procedure has been initiated. When the applicable sanction is a fine, it shall be reduced, taking into account the following: 1. If the acknowledgment of the infraction 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 infraction 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) Contribution of the offender to the clarification of the infraction."

[3] Artículo 26.- MITIGATING FACTORS OF LIABILITY The following constitute mitigating conditions of liability for infringements: (…) b) The remediation carried out after its requirement or the initiation of the administrative sanctioning procedure.

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

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

[6] Artículo 221.- Requirements of the remedy The written document of the remedy shall indicate the act from which the appeal is made and shall comply with the other requirements provided for in Article 124.

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Whereas, pursuant to paragraph 26 of Article 12 of the Organizational and Functional Regulations of the SMV, approved by Supreme Decree N°216-2011-EF and its amendments7, it is the responsibility of the Superintendent of the Securities Market to resolve, as the final administrative instance, the appeals filed against administrative acts of the bodies of the SMV.

III. ANALYSIS OF THE ADMISSIBILITY OF THE APPEAL

A. AUTOPLAN reitera que corresponde aplicar el atenuante previsto en el artículo 257 del TUO DE LA LPAG y en los literales a) y b) del artículo 26 del REGLAMENTO DE SANCIONES (reconocimiento de responsabilidad de los hechos acontecidos y contribución en el esclarecimiento de la infracción).

Al respecto, debe precisarse que de la lectura de LA RESOLUCIÓN, se verifica que tanto el reconocimiento de la responsabilidad del infractor como la contribución al esclarecimiento de la infracción fueron considerados en la evaluación de la determinación de responsabilidad administrativa conforme consta en los siguientes considerandos de LA RESOLUCIÓN, los mismos que se citan seguidamente:

“100. With respect to the voluntary declaration of the commission of the infringement and the offender's contribution to its clarification, established in article 257°, numeral 2, subsection a) of the TUO OF THE LPAG and in article 26° of the SANCTIONS REGULATION, it must be pointed out that AUTOPLAN EAFC has acknowledged its responsibility for the infringement incurred, and has contributed to its clarification;

(…)

103. From the foregoing, it is concluded that AUTOPLAN EAFC has incurred in the commission of two (2) infractions classified as serious in Annex XIII, numeral 2, subsection 2.16 of the SANCTIONS REGULATIONS, for which a sanction corresponding to infractions classified as serious must be imposed on AUTOPLAN EAFC in accordance with Article 38 of the SANCTIONS REGULATIONS; therefore, a fine greater than 25 UIT and up to 50 UIT would correspond; however, to the extent that AUTOPLAN EAFC has acknowledged the commission of the two (2) infractions detailed above, and has contributed to their clarification; the provisions of Article 26, literals a), numeral 1) and b) of the SANCTIONS REGULATIONS must be applied, so the fine for said infractions must range between 12.5 UIT and 25 UIT; that is, 50% of the range established for serious infractions;

104. However, taking into account the sanction criteria analyzed, and in application of the Principle of Reasonableness contemplated in Article 248, numeral 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 infraction, this Deputy Superintendency considers that a sanction lower than that provided for serious infractions must be imposed on AUTOPLAN EAFC, in accordance with the provisions of Article 39 of the SANCTIONS REGULATIONS”; [underlining is ours]

In that sense, it has been verified that THE RESOLUTION evaluated and applied the mitigating circumstance of responsibility alleged by AUTOPLAN, which is provided for in

[7] Article 12.- The following are attributions or powers of the Superintendent, without prejudice to those corresponding to him as the highest executive authority of the SMV, for the proper exercise of the institutional functions described in Article 3 of these Regulations: (…) 26. To resolve in the last administrative instance the appeals filed against administrative acts of the bodies of the SMV, including those issued by the selection committee of Appraisers for the purposes of the public offering of acquisition and public offering of purchase.

Article 257 of the TUO OF THE LPAG and in literals a) and b) of Article 26 of the SANCTIONS REGULATIONS.

B. AUTOPLAN states as a new argument that the mitigating circumstance provided for in literal c) of Article 26 of the SANCTIONS REGULATIONS should be applied, which establishes the following:

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

From the cited norm it can be observed that two elements are required for the aforementioned mitigating circumstance of liability to apply: i) the correction and ii) the timeliness of the correction (after its requirement or the start of the administrative sanctioning procedure). Where correcting implies that the administered party carries out behavior that repairs or remedies the damage caused.8

Taking into account the foregoing, we proceed to analyze whether the application of the aforementioned norm corresponds in the charges imputed:

a) Regarding the first charge imputed for not having complied with the collective fund administration contract in regard to the right of the associate with a terminated contract to be informed regarding the date of return of their contributions and to receive the respective return within the established term

According to the provisions of THE RESOLUTION, AUTOPLAN had as a deadline to communicate the return of the contributions in favor of the complainant in THE RESOLUTION (hereinafter, MRS. CAVERO), 05 February 2021; however, it made said communication only on 9 July 2021; that is, the communication was made with a delay of 154 calendar days.

Likewise, to return the aforementioned contributions AUTOPLAN had as a deadline 20 April 2021; however, the return was made effective only on 23 July 2021, that is, 94 days after the deadline.

On the one hand, it is observed that AUTOPLAN did not communicate the return of the contributions in a timely manner. In that sense, the infracting conduct was not fully corrected, since the reversal of the damage would imply that the aforementioned communication occurred in a timely manner and did not cause discomfort to the complainant, who had to invest her time in obtaining a response from AUTOPLAN.

[8] In this regard, Morón states: “Correcting implies having to repair or remedy a right or compensate a damage caused, in this case to the Public Administration or to a third party. (…) In that sense, it is not only a passive regret for the illicit act (…), but the subject spontaneously seeks the reparation of the harm or damage caused”. Later he adds: “therefore it is not corrected by merely ceasing to incur the incorrect practice, by regretting it, but by truly identifying the damage actually produced to the protected legal good and reversing it”. Morón Urbina, Juan Carlos. Comments to the general administrative procedure law. Volume II. Gaceta Jurídica, 2020. Pág. 521 – 522.

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On the other hand, it is observed that additionally, AUTOPLAN did not return the contributions within the established term, that is, it did not return the contributions in a timely manner. Consequently, it also did not fully correct the infracting conduct, since the reversal of the damage would imply that the aforementioned return occurred in a timely manner. In this case, the timely return of the contributions has special relevance, since MRS. CAVERO could not dispose of the money for 94 days, time in which she could have made payments, investments, attended to an emergency, among others.

b) Regarding the second charge imputed referred to not having complied with the collective fund administration contract in regard to attending the claim presented by the associate within the established term.

It is observed that on 17 September 2020, MRS. Cavero through an email sent to contacto@autoplan.pe presented a claim before AUTOPLAN, regarding the termination of her contract, the return of her money and the exoneration of a penalty.

It is relevant to note that the term for the resolution of claims of the associates by AUTOPLAN is thirty (30) calendar days from the receipt thereof, and may be extended for an equal term if warranted, with prior communication to the associate.

In that sense, the claims formulated by MRS. Cavero should have been resolved within thirty (30) days from the receipt thereof; however, MRS. Cavero received a response from AUTOPLAN after the aforementioned term, that is, on 9 July 2021.

Thus, it is observed that the damage was not attending the claim presented by the associate within the established term, that is, not attending the claim in a timely manner.

Consequently, it also does not correspond to apply the mitigating circumstance provided in literal c) of article 26 of the SANCTIONS REGULATION, because the infracting conduct has not been totally corrected, as it implies the timely attention of the claim made by MRS. CAVERO.

C. Now, the fact that the administered party has sought to correct the damages is something that THE RESOLUTION has taken into account, among others, since it applied a sanction corresponding to a lower classification than that provided for serious infractions.

On the matter, it is necessary to specify that through THE RESOLUTION, a fine of eight (08) UIT was imposed on AUTOPLAN for having incurred two (2) serious infractions typified in Annex XIII, numeral 2, subsection 2.16 of the Sanctions Regulation, for not having complied with the collective fund administration contract in regard to (i) the right of the associate with a terminated contract to be informed regarding the date of return of their contributions and to receive the respective return within the established term; and (ii) for not attending the claim presented by the associate within the established term.

Now then, pursuant to article 38 of the SANCTIONS REGULATION9, a serious offense is punishable by a fine of more than twenty-five (25) and up to fifty (50) Tax Units (UIT) or by the prohibition of forming new groups; that is, in the hypothetical case of a sanction having been imposed with the minimum amount, a sanction amounting to 25 UIT per offense would correspond to be imposed on AUTOPLAN; that is, 50 UIT for the two serious offenses subject to charges.

However, as observed in recitals 103 and 104 of THE RESOLUTION, in the present sanctioning proceeding, the SASP applied letters a) and b) of article 26 of the Sanctions Regulations, so that the fine for the offense fluctuates between 12.5 UIT and 25 UIT; that is, 50% of the range established for serious offenses. Additionally, the SASP applied the principle of reasonableness contemplated in article 248, numeral 3 of the TUO OF THE LPAG, imposing a sanction corresponding to a classification lower than that provided for serious offenses, which corresponds to an amount not less than one (1) UIT nor more than twenty-five (25) UIT pursuant to article 39 of the SANCTIONS REGULATION10.

That, in accordance with the foregoing developed and analyzed, it can be maintained that THE RESOLUTION is justified and reasoned because it is noted therein that the grounds leading to the conclusion that AUTOPLAN incurred in the non-compliances imputed as charges in the present administrative sanctioning proceeding have been validated with the application of the mitigating factors provided in the Sanctions Regulations; and,

In view of the provisions of numeral 26 of article 12° of the Regulations on Organization and Functions of the SMV, approved by Supreme Decree N° 216-2011-EF;

RESOLVES:

Article 1°.- To declare unfounded the appeal filed by Autoplan Empresa Administradora de Fondos Colectivos S.A. against the Superintendency Resolution Adjunct SMV N° 004-2023-SMV/10.

Article 2°.- To declare the administrative remedy exhausted.

Article 3°.- To transcribe the present resolution to Autoplan Empresa Administradora de Fondos Colectivos S.A.

[9] CHAPTER III Of Sanctions in the Administration of the Collective Funds System (…) Article 38.- Sanctions for Serious Offenses- For the commission of serious offenses, the offender shall be imposed one of the following sanctions: a) Fine of more than twenty-five (25) UIT and up to fifty (50) UIT; and, b) Prohibition of forming new groups.

[10] CHAPTER III Of Sanctions in the Administration of the Collective Funds System (…) Article 39.- Sanctions for Minor Offenses For the commission of minor offenses, the offender shall be imposed one of the following sanctions: a) Admonition; or, b) Fine not less than one (1) UIT nor more than twenty-five (25) UIT;

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Article 4°.- To order the dissemination of the present resolution on the Institutional Website 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

Superintendent's Resolution No. 039-2024-SMV/02 dismissing Autoplan's appeal against sanction for breaches of a collective fund administration contract