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Racheya

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So, in other words, the European Union is the Fourth Reich? :thumbdown:

 

To my understanding, yes. typical question you could ask a newspaper though, if you're in doubt, or want a clearer explanation?

 

I really think those who live in the EU need to know more about what the EU actually entails, it's really scary.

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exactly. the EU is a system of federated states. what's different with that and the US (examples in previous post of major similarities)?

 

The difference is that, in the United States, each individual state is pretty much a non-country. They have very few rights and answer almost entirely to the Federal government. If they tried to secede, the Federal government would declare war on them.

 

The EU, on the other hand, consists of several SOVEREIGN nation-states that have the right to self-determination and can withdraw at will. Each constituent nation-state has much more freedom than a constituent state of the United States of America.

 

That's what the difference is. The EU is more of an association of nation-states that seeks to make another European war impossible, and it is there in order to ensure that Europe can survive in a post-colonial world. The United States is a close association of states that have very few rights and cannot withdraw if they wanted to. The United States is an empire whereas the European Union is not.

 

ah, that's where you're both wrong though. EU-law overrides national law automatically. No member has yet tried to withdraw from the EU (only terretories), when that happened in the USA there was civil war.

 

your assertion is that any membernation may leave from the EU. That right was only formally established in 2009 with the Lisbon Treaty as far as I know. BUT, and this is the most important thing to remember, there NO alternative for UNILATERAL WITHDRAWAL, only NEGOTIATED withdrawal, at which only the Lisobon Treaty ceases its effect if the negotiations fail. No prveious treaties have had any option of withdrawal, so these are then not reversed, all the way back to the coal and steel union.

 

 

According to the Vienna convention of international politics, there is no right of withdrawal unless directly stated, so in practice the UK can always withdraw from the Lisbon Treaty under special circumstance, but only after negotiation with the EU, i.e. EU vote.

 

Further, in joining the Euro, a nation specifically enters an "irrevercible" pact, so these nations are particularly stuck. the whole debate in Germany over kicking Greece out of the EU was only in relation to Greece failing to satisfy the demands they faked their numbers to acchieve in joining. Greece has no option of choosing to leave, they can however be kicked out: they are at mercy to the EU, and in particular the Euro-cooperative.

 

Before tested in court, noone really knows, but going by current Euro law, no member-nation may leave, other than the treaty of Lisbon, which is not the same as leaving the Union.

 

 

the EU is very similar to the US at its beginnings. federal law expanded gradually over time as well, but were effectively independent at the onset. to me it seems EU members are stuck, at least legally.

 

I'm afraid you are very, very wrong. You begin on the correct premise that EC law overrides national law where it conflicts, but unfortunately the exact reasons why disprove your argument entirely. Here is why. Each individual member state has been, for thousands of years in some cases, a sovereign, independent nation (a claim that none of the US states could make). When the EU was created, it was created by the power of those member states, all the institutions, courts, legislatures and the treaty itself derive their powers from the sovereignty of the member states rather than their own political worth (a massive contrast from the US federal government).

 

To back this up, here are some actual judgements from the courts of member states, as it has actually been tested in court.

 

Article 24 of the Constitution deals with the transfer of sovereign rights to inter-State institutions. Like every constitutional provision of a similar fundamental nature, Article 24 of the Constitution must be understood and construed in the overall context of the whole Constitution . That is [the EU], does not open the way to amending the basic structure of the Constitution , which forms the basis of its identity, without a formal amendment to the Constitution , that is, it does not open any such way through the legislation of the inter-State institution.

Certainly, the competent Community organs can make law which the competent German constitutional organs could not make under the law of the Constitution and which is nonetheless valid and is to be applied directly in the Federal Republic of Germany. But Article 24 of the Constitution limits this possibility in that it nullifies any amendment of the Treaty which would destroy the identity of the valid constitution of the Federal Republic of Germany by encroaching on the structures which go to make it up

 

The Federal Republic of Germany, therefore, even after the Union Treaty comes into force, will remain a member of a federation of States, the common authority of which is derived from the member-States and can only have binding effects within the German sovereign sphere by virtue of the German instruction that its law be applied. Germany is one of the 'Masters of the Treaties' , which have established their adherence to the Union Treaty concluded 'for an unlimited period' with the intention of long-term membership, but could also ultimately revoke that adherence by a contrary act. The validity and application of European law in Germany depend on the application-of-law instruction of the Accession Act. Germany thus preserves the quality of a sovereign State in its own right

 

Whatever limitation of its sovereignty Parliament accepted when it enacted the European Communities Act 1972 was entirely voluntary

(to clarify this one, the power of the EU once again derives from a revocable Act of Parliament from a national goverment, not its own innate power)

 

The relationship between the EC and UK was not to be decided by ECJ jurisprudence, the common law, in the light of Parliamentary Statute was the only appropriate forum. Any EC law that was seen as repugnant to a fundamental or constitutional right would have questionable, if any, overriding effect in the UK.

 

France, Italy, Poland, and most other member states have made similar decisions; the EU is not the fourth reich, nor is it a situation from which the member states cannot leave, can I ask where you have got your understanding from? The EU is really not a scary thing at all, it is an entirely voluntary, economic program that very rarely, if ever, actual strays into social policy being economic impacts. All of the judgements of the ECJ have protected human rights to the highest possible standard, and the member states are clear that they are the masters, and will never let go of that.

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first and foremost: the Lisbon treaty overrides all older legislation where this conflicts, (Declaration 17). I discussed the legality of leaving the Lisbon treaty previously, your pre-dated argumentation is therefore only valid if your member nation unilaterally withdraws.

 

Further:

 

solange case: the position was reverted in the wünsche handelsgesellschaft case, and further with Solange II

 

Brunner Decision: does not hold presedence after Solange II.

 

 

you're directly wrong on the Factortame Desicion:

The Factortame litigation led to a series of landmark decisions in United Kingdom (UK) and European Union (EU) law. The case confirmed the supremacy of European Union law over national law in the areas where the EU has competence.
there was at that point (agreements still in effect today) that allow for withdrawal of the UK past that case. However,
Bridge held this based on the grounds the UK knew of EC supremacy before they passed the EC Act 1972.
Touché.

 

 

your second premise: "it's actually been tested in court" no Act of Parliament (UK) has intentionally contradicted with EC law. quote me a case on that, if such a landmark desicion has happened within the last 6 months, i'm sure i'd have heard about it.

in Macarthys Ltd v Smith, Lord Denning said, "If the time should come when our Parliament deliberately passes an Act with the intention of repudiating the Treaty or any provision in it or intentionally of acting inconsistently with it and says so in express terms then . . . it would be the duty of our courts to follow the statute of our Parliament."

 

 

I have my understanding of EU law from my course in EU law. I live in Norway, which is a member of EFTA but not EU. The legal proceedings of joining and leaving the EU have been the load-bearing stone in the debate on joining the EU here in norway for decades. Under EFTA, we are legislatively bound under the "first pillar" of the EU to enact Community Law. As a member of EFTA, norway (population of less than 5 million) had more than 1500 cases of EFTA law dictating free market policy. A poignant example, is the questioned legality of a waterscooter ban in norway, because it would de facto limit the European internal market, because there would be no import of waterscooters to norway. The case is not resolved, but is only one of 1500 last year where EU law overrides Norwegian law. it is still unknown if we will have certain areas where jetskis have to be allowed.

 

This example proves my point of the European Economic area, and Community Law very regularly interfereing with national law. Where do you get your understanding of the contrary from?

 

 

The EU isn't scary at all. I personally would like seeing Norway join the union. However, leaving the EU is probably the greatest counter-argument to my opinion. There is no official mechanism of unilateral withdrawal, and no mechanism of any type of withdrawal of a member nation has been tested in court. There is no option to override community Law (Declaration 17 again), and so, leaving or disagreeing with a certain ruling is almost impossible.

 

Just look at hedgefund regulation passed today. If the UK could, the UK would not implement these regulations. The governments hand is forced, even though 80% of the European hedgefund market is located in London.

 

It is true that the member states are the masters COLLECTIVELY but only through voting in the EU parliament: this latest law directly hurts the trillion dollar british economic trade, wouldn't the UK resent the law? http://www.businessweek.com/news/2010-05-17/hedge-fund-law-opposed-by-u-s-u-k-set-for-eu-votes-update1-.html

 

You generally dont outvote member states on areas they have a particular interest in. If the finance ministers do decide to go ahead with it, then theres not a thing the U.K. can do.
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first and foremost: the Lisbon treaty overrides all older legislation where this conflicts, (Declaration 17). I discussed the legality of leaving the Lisbon treaty previously, your pre-dated argumentation is therefore only valid if your member nation unilaterally withdraws.

 

I'd be hesitant to cite the Lisbon Treaty with as much certainty as you do; very few, if any actually understand the practical impact of the treaty yet (even the drafters themselves). Declaration 17 is nothing more than a statement against primacy being enshrined in the Treaty. It affirms the case law of the ECJ, but, if you follow my argument, the power of the ECJ derives from member states; once again reaffirming the final power rests in the hands of the member nations.

 

Further:

 

solange case: the position was reverted in the wünsche handelsgesellschaft case, and further with Solange II

 

Brunner Decision: does not hold presedence after Solange II.

 

First one, my bad, I meant to quote Solange II. I fail to see how my point is countered though - all of the Solange decisions have resulted in a reservation of national power against the EU (albeit with a caveat of trust). Do not be confused by the fact they have said they will not review the EU until certain fundamental rights fall to an unacceptable level; the judgement in full makes it clear that the German power is reserved, and that the entire EU is based in member state power, with no inherent power of its own. Also, according to my dates, Brunner is actually later than Solange I and II, and both are GCC cases, making Brunner clear precedent.

 

you're directly wrong on the Factortame Desicion:

The Factortame litigation led to a series of landmark decisions in United Kingdom (UK) and European Union (EU) law. The case confirmed the supremacy of European Union law over national law in the areas where the EU has competence.
there was at that point (agreements still in effect today) that allow for withdrawal of the UK past that case. However,
Bridge held this based on the grounds the UK knew of EC supremacy before they passed the EC Act 1972.
Touché.

 

Wait, I'm wrong, but touche? You seem to be missing my distinction between supremacy of law (which noone really disputes - EU law is supreme on a basic facilitative argument) and the actual basis of that supremacy (on which there is great argument). Whilst the US federal government has an innate power all of its own, my argument is that the EU differs because its power is solely derives from member states voluntarily transferring competence, which it can revoke or withdraw at any point. Factortame directly supports this view in the UK - the EU's power is only there because of the Act of Parliament from the UK, and nothing else. I'm a UK law student, I know how our constitutional system works, I assure you my reading of Factortame is not directly wrong.

 

your second premise: "it's actually been tested in court" no Act of Parliament (UK) has intentionally contradicted with EC law. quote me a case on that, if such a landmark desicion has happened within the last 6 months, i'm sure i'd have heard about it.

in Macarthys Ltd v Smith, Lord Denning said, "If the time should come when our Parliament deliberately passes an Act with the intention of repudiating the Treaty or any provision in it or intentionally of acting inconsistently with it and says so in express terms then . . . it would be the duty of our courts to follow the statute of our Parliament."

 

In terms of being tested in court, I meant the functional basis of the EU. It is a logical conclusion from the fact that the EU's power is based in an Act of Parliament that a later Act of Parliament will override that power. If anything the quote you have posted supports that conclusion and thus further undermines the argument that the EU is approaching a US style federation.

 

 

have my understanding of EU law from my course in EU law. I live in Norway, which is a member of EFTA but not EU. The legal proceedings of joining and leaving the EU have been the load-bearing stone in the debate on joining the EU here in norway for decades. Under EFTA, we are legislatively bound under the "first pillar" of the EU to enact Community Law. As a member of EFTA, norway (population of less than 5 million) had more than 1500 cases of EFTA law dictating free market policy. A poignant example, is the questioned legality of a waterscooter ban in norway, because it would de facto limit the European internal market, because there would be no import of waterscooters to norway. The case is not resolved, but is only one of 1500 last year where EU law overrides Norwegian law. it is still unknown if we will have certain areas where jetskis have to be allowed.

 

This example proves my point of the European Economic area, and Community Law very regularly interfereing with national law. Where do you get your understanding of the contrary from?

 

Is the case you mention Mickelsson v Roos? Its commonly known as the Swedish Jet Skis case here, so I guess its either the same or an analogous case. I'd like to reiterate my point here; I am not arguing against the primacy of EC law, rather that the important, fundamental basis of it is very different from a US style arrangement, and places control firmly in the hands of member states. Further, the very nature of the treaty, will all its shared and excluded competences, derogation articles, stricter national measures articles, exceptions and escape routes means that any vision of the EC as some new, constitutional political system is plain and simply wrong. My understanding of the EC comes from my law degree from Oxford University in the UK, during which I have had the privilege of being taught by some of the most knowledgeable constitutional lawyers in the world.

 

The EU isn't scary at all. I personally would like seeing Norway join the union. However, leaving the EU is probably the greatest counter-argument to my opinion. There is no official mechanism of unilateral withdrawal, and no mechanism of any type of withdrawal of a member nation has been tested in court. There is no option to override community Law (Declaration 17 again), and so, leaving or disagreeing with a certain ruling is almost impossible.

 

There is no official mechanism in the treaty for unilateral withdrawal because nobody needs one; all they have to do is revoke whatever statute currently grants the EC primacy, to use my UK example again, if Mr Cameron revoked the Act of Parliament tomorrow, we would be out of the EU instantly, and the courts have made it clear in Factortame that they would the revert to UK law as supreme. In terms of overriding specific law, the treaty itself provides a huge number of escape clauses (that, remember, are there because the member states have forced them to be) such as the Art 30 exceptions to Art 28 breaches, the Art 176 provisions for national independance on environmental measures, and plenty more (coupled with subsidiarity as a general principle of the EC). In the UK then, all we need to ignore the EC is a new act of Parliament (either a complete withdrawal or partially) and even then only if the safeguards inherent in the treaty fail.

 

Just look at hedgefund regulation passed today. If the UK could, the UK would not implement these regulations. The governments hand is forced, even though 80% of the European hedgefund market is located in London.

 

It is true that the member states are the masters COLLECTIVELY but only through voting in the EU parliament: this latest law directly hurts the trillion dollar british economic trade, wouldn't the UK resent the law? http://www.businessweek.com/news/2010-05-17/hedge-fund-law-opposed-by-u-s-u-k-set-for-eu-votes-update1-.html

 

You generally dont outvote member states on areas they have a particular interest in. If the finance ministers do decide to go ahead with it, then theres not a thing the U.K. can do.

 

I won't comment on this as I see it as a political and financial issue, rather than a legal or constitutional one; the fact we have let one law pass that harms one interest of the UK does not amount to EC rule with an iron fist, I expect politicians have let it pass due to the fact the EC is a two way road (we have to take some hits to obtain the benefit) and, quite frankly, public opinion in the UK amounts to "regulate the bankers and financial industries", so it may well even be of benefit to the UK.

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the power of the ECJ derives from member states; once again reaffirming the final power rests in the hands of the member nations.

 

this power has been permanently delegated to the ECJ. there is no mechanism for retaking that control unless you leave the EU, the eropean economic area etc. you reject the ECJ, you've just rejected the entire package.

 

sorry, i didn't mean Solange II, rather Solange 3, i remmebered it was the next solange one (checked it as well this time). Either way, the implications are none after the Lisbon treaty. . http://www.mpifg.de/people/mh/paper/ZERP%20Discussion%20Paper%201.2010.pdf is very informative on the German situation.

 

 

Declaration 17 is nothing more than a statement against primacy being enshrined in the Treaty.
what? the declaration reads:
17. Declaration concerning primacy

 

The Conference recalls that, in accordance with well settled case law of the Court of Justice of the European Union, the Treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of Member States, under the conditions laid down by the said case law.

 

[footnote given as part of law:] ... the law stemming from the treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as Community law and without the legal basis of the Community itself being called into question.

 

according to my EU law professor, the basis is immaterial: you can't withdraw from part of the EU, only the whole package. there is no proccess from leaving the whole package, however the sanctions the EU can impose (through member voting) on the UK can have extreme impacts.The legal basis of the US and EU may be different, but the legal implications are the same. You could technically leave the US prior to the civil war as well, which the south did. Before the first challenge, it's all speculation, just like other international trieaties only show their worth when challenged.

 

That is the creed of policy: changing the law when you find the need. there is little any EU member can do if the other members choose to change the law. politics and law are so intertwined examining one without the other is like examining sports regulations, but not how they are applied in real life.

 

 

Almost all UK representatives voted against the legislation today. loss of revenue was estimated by the BBC as £20-30bn over the next five years (these numbers may hav been picked out of the air, who knows). you, the british taxpayers, are the ones who pay the tab as EU law is implemented, not as EU law and thus rejectable, but as it is integrated into British law piece by piece.

 

If there's really a magical "leave" button, enshrined in uk law, we haven't been told of its existance so far in our course. It would be magnificently unique, but then how are EU regulations "practically implemented" after ECJ rulings in the UK? the EU laws aren't made part of UK law directly, as in most other countries?

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the power of the ECJ derives from member states; once again reaffirming the final power rests in the hands of the member nations.

 

this power has been permanently delegated to the ECJ. there is no mechanism for retaking that control unless you leave the EU, the eropean economic area etc. you reject the ECJ, you've just rejected the entire package.

 

See, I would argue the very fact that you can reject the ECJ at all means that the delegation is not a permanent one. You are quite correct that there is no explicit mechanism in the treaty for rejecting the ECJ, but that overlooks the importance of national constitutional power again. In the UK, the doctrine of Parliamentary Sovereignty is, literally, EVERYTHING. Parliament may do anything it likes, provided it does not bind a future Parliament. Thus if Parliament made an Act that stated UK courts were not bound by ECJ judgements, the UK courts would then be free (like your quote from Lord Denning said).

 

sorry, i didn't mean Solange II, rather Solange 3, i remmebered it was the next solange one (checked it as well this time). Either way, the implications are none after the Lisbon treaty. . http://www.mpifg.de/people/mh/paper/ZERP%20Discussion%20Paper%201.2010.pdf is very informative on the German situation.

 

Hm, I have no mention of Solange 3 on any of my reading lists, textbooks or lecture notes; also from the article you sent the conclusion reached seems to be the same as mine, from page 24 - "In the end, the GCC comes to a conclusion similar to that of the CCC. While an abandonment of Germanys sovereignty is prohibited by German Basic Law, the Treaty of Lisbon can be legally ratified as it does not establish a federal European state"

 

Declaration 17 is nothing more than a statement against primacy being enshrined in the Treaty.
what? the declaration reads:
17. Declaration concerning primacy

 

The Conference recalls that, in accordance with well settled case law of the Court of Justice of the European Union, the Treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of Member States, under the conditions laid down by the said case law.

 

[footnote given as part of law:] ... the law stemming from the treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as Community law and without the legal basis of the Community itself being called into question.

 

First of all, read this Dec. in conjuction with the opinion of the council legal service;

It results from the case-law of the Court of Justice that primacy of EC law is a cornerstone principle of Community

law. According to the Court, this principle is inherent to the specific nature of the European Community. At the time of the first judgment of this established case law (Costa/ENEL,15 July 1964, Case 6/641 (1) there was no mention of primacy in the treaty. It is still the case today. The fact that the principle of primacy will not be included in the future treaty shall not in any way change the existence of the principle and the existing case-law of the Court of Justice.

. The key thing to note here, is that the declaration clearly states that the CASE LAW OF THE ECJ is reaffirmed; this does not equal it being hardened into a treaty provision, as is clear from the Opinion of the Council Legal Service. It also reaffirms supremacy (again, noone arguing there) without reaffirming the basis, the important bit, which leads me too...

 

 

according to my EU law professor, the basis is immaterial

 

This, this is problematic. Imagine a more domestic situation, X is a child (in the EU, a citizen). X has a sovereign, his mother (the national state/state in the US). In some cases, he will have a father (another sovereign body, like the US federal body). In the case of the EU, the EU does not fulfill the role of father, or of a new sovereign body. It is rather the babysitter, who only has authority over the child because the mother/sovereign says so.

 

 

you can't withdraw from part of the EU, only the whole package. there is no proccess from leaving the whole package

 

You certainly can withdraw from parts of the EU. The UK and Poland have an opt out from the new fundamental charter of rights. Likewise Ireland and the UK currently have an opt-out from European policies concerning asylum, visas and immigration. Under the new treaty they have the right to opt in or out of any policies in the entire field of justice and home affairs. Dublin also won guarantees that the treaty would not infringe on its sovereignty in the areas of taxation, family issues and state neutrality. Denmark will continue with its existing opt-out from justice and home affairs, but has the right under the new treaty to opt for the pick-and-choose system. Even if you don't have an opt out outside the treaty (which, we must remember, is drafted by member states), there are plenty of ways to opt out within - I dealt with this before with the example of Art 30 exceptions. I have also dealt with the lack of process for leaving within the treaty being irrelevant.

 

The sanctions the EU can impose (through member voting) on the UK can have extreme impacts.The legal basis of the US and EU may be different, but the legal implications are the same. You could technically leave the US prior to the civil war as well, which the south did. Before the first challenge, it's all speculation, just like other international trieaties only show their worth when challenged. That is the creed of policy: changing the law when you find the need. there is little any EU member can do if the other members choose to change the law. politics and law are so intertwined examining one without the other is like examining sports regulations, but not how they are applied in real life.

 

Here I think you are beginning to leave legal discourse altogether; the fact that the EU could levy sanctions against member states that resile from the EU does not make those sanctions law, nor does it make that body sovereign or the head of a federation. That definition of law was left behind decades, if not hundreds of years ago (I don't know if you a jurisprudential module, but if you don't look up the basics of Hart's concept of law, or Dworkin's theory of law for the newest versions of positivism, that march firmly away from sanction as their basis). Practical reality is of course important, if not the most important thing, but the legal basis will make an incredible difference to those discussions, and to ignore the legal basis is to not have a full picture.

 

Almost all UK representatives voted against the legislation today. loss of revenue was estimated by the BBC as £20-30bn over the next five years (these numbers may hav been picked out of the air, who knows). you, the british taxpayers, are the ones who pay the tab as EU law is implemented, not as EU law and thus rejectable, but as it is integrated into British law piece by piece.

 

As far as the UK is concerned, £20-30 billion is relatively peanuts; our recent election debate tried to raise the issue of our nuclear deterrent, which currently costs approx £170bn, but nobody cared. The democratic deficit of the EU is another issue, entirely separate from the importance of supremacy and whether the EU is a constitutional body, which it isn't. I for one have no problem with the financial services losing some of its profit margin after the way its acted recently.

 

If there's really a magical "leave" button, enshrined in uk law, we haven't been told of its existance so far in our course. It would be magnificently unique, but then how are EU regulations "practically implemented" after ECJ rulings in the UK? the EU laws aren't made part of UK law directly, as in most other countries?

 

I can assure you the magical "leave button" exists in the UK; Parliamentary Sovereignty is literally day 1 week 1 subject matter for all UK law students, and its pretty clear cut that if Parliament said something, the courts will follow it, the EU could moan and levy sanctions as much as it liked, the courts would do what Parliament said. I don't quite understand your last sentence, an ECJ ruling is entirely different from a Regulation (and Directive, Decision, Recommendation etc). Essentially though, EC legislation is accepted by the UK courts as binding because of the European Communities Act 1972; we never transpose it directly into our law, the courts only follow it because Parliament tells them to. The same applies to ECJ rulings.

 

All of this leads me to my main conclusion - the EU is a supra national body with competence to pass binding laws across Europe. It remains however, functionally, legally, and practically within the control of the member states (indeed, it IS the member states) who may alter, derogate, resile from or go above and beyond its provision. It differs fundamentally from the US (or, ludicrously, the fourth reich) in both practice and legal basis; the member states retain their own independant sovereignty, and always will.

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