BREXIT BRIEF Brexit Brief Issue 94 - 23 September 2020 - The Institute of International and European Affairs
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BREXIT
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Brexit Brief Issue 94
23 September 2020
Introduction
The Brief seeks to provide up-to-date information on the progress and content of the UK-EU
negotiations, and bring together relevant statements and policy positions from key players in
Ireland, the UK and the EU.
The Brief is part of a wider communications programme covering the work of the IIEA’s UK
Project Group – including commentaries, speeches, texts and event reports – which are
highlighted on the Institute’s website. (www.iiea.com)
Section One: State of Play the courts should follow what the future UK
internal market act says, not the withdrawal
United Kingdom Internal Market Bill agreement.”
On 7 September 2020 the UK Government On the following day, in the House of
indicated that it would introduce a United Commons, the Tory MP, Sir Robert Neill asked
Kingdom Internal Market Bill which would whether the Northern Ireland Secretary would
affect post-Brexit customs and trade rules in assure the House that nothing proposed in
Northern Ireland. the legislation could breach international
the UK’s international legal obligations.
The Financial Times on the same day reported
Secretary Brandon Lewis replied: “I would say
that UK legislation would be introduced
to my hon. Friend that yes, this does break
that would undermine key elements of the
international law in a very specific and limited
2019 Withdrawal Agreement, contradicting
way. We are taking the power to disapply
specific treaty obligations on state aid and
the EU law concept of direct effect, required
export summary declarations. “Essentially,
by article 4, in certain very tightly defined
the government would be pulling back two
circumstances. I say to my hon. Friend that
pieces of the Withdrawal Agreement, saying
we are determined to ensure that we are
that now, as a matter of UK law at least,
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delivering on the agreement that we have in At Prime Minister’s Questions on 9 September
the protocol, and our leading priority is to do the Scottish National Party MP, Alastair
that through the negotiations and through the Carmichael asked: “The Prime Minister
Joint Committee work. The clauses that will may be aware that there are some Scottish
be in the Bill tomorrow are specifically there nationalists who want Scotland to follow the
should that fail, ensuring that we can deliver example of Catalonia and have a wildcat
on our commitment to the people of Northern independence referendum. I oppose that
Ireland.” because it would be illegal. If the Prime Minister
thinks it is acceptable for his Government to
The United Kingdom Internal Market Bill was ignore international law, on what basis would
introduced on 9 September 2020. Its title he oppose it?
makes specific reference to “provision in
connection with provisions of the Northern Boris Johnson replied: “My job is to uphold
Ireland Protocol relating to trade and state the integrity of the UK, but also to protect the
aid.” Northern Irish peace process and the Good
Friday agreement. To do that, we need a
The key elements of the 60 page Bill are legal safety net to protect our country against
contained in Section 45 which states that extreme or irrational interpretations of the
powers contained in the Bill “have effect protocol that could lead to a border down the
notwithstanding any relevant international Irish sea in a way that I believe […] would be
or domestic law with which they may be prejudicial to the interests of the Good Friday
incompatible or inconsistent.” And, further agreement and prejudicial to the interests
that “Regulations […] are not to be regarded as of peace in our country. That has to be our
unlawful on the grounds of any incompatibility priority.”
or inconsistency with relevant international or
domestic law.” The Prime Minister defended the Bill in a
Telegraph Article on 12 September:
The Bill also provides that “Any other provision
or rule of relevant international or domestic Our partners know that whatever happens,
law ceases to have effect so far and for as the UK is their friend, their biggest single
long as it is incompatible or inconsistent with export market, and committed forever to the
a provision mentioned [elsewhere in the bill]” peace and security of the European continent.
The “international and domestic law” to be But they also know – or at least they know
disregarded includes “any provision of the now - that leaving the EU means that the UK
Northern Ireland Protocol [and] any other is serious about its newfound sovereignty. In
provision of the EU withdrawal agreement.” forging our new relationships, we can’t have
our lives or our economy regulated by the
Under the terms of the Bill, UK Ministers can European Court; we must have the right to
make regulations which ignore “any other devise our own laws and regulations.
legislation, convention or rule of international
or domestic law whatsoever, including any We decided in the Withdrawal Agreement
order, judgment or decision of the European to create a Joint Committee, in which we
court or of any other court or tribunal”. would thrash out the details of these new
arrangements. It is here that things risk
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coming unstuck. We are now hearing that “miserable, squabbling days of last autumn”.
unless we agree to the EU’s terms, the EU will He did not take questions and there appeared
use an extreme interpretation of the Northern to be a negative response from opponents
Ireland protocol to impose a full-scale trade seeking to promote amendments to the Bill
border down the Irish Sea. We are being told and to look to the House of Lords to obstruct
that the EU will not only impose tariffs on and complicate the Prime Minister’s plans.
goods moving from Great Britain to Northern
Ireland, but that they might actually stop the Writing in the Sunday Times on 13 September,
transport of food products from GB to NI. former Prime Ministers John Major and Tony
Blair – argued that the government’s actions
I have to say that we never seriously believed were “irresponsible, wrong in principle
that the EU would be willing to use a Treaty, and dangerous in practice”. The Bill “raises
negotiated in good faith, to blockade one part questions that go far beyond the impact on
of the UK, to cut it off; or that they would Ireland, the peace process and negotiations
actually threaten to destroy the economic
for a trade deal - crucial though they are. It
and territorial integrity of the UK. Such an
questions the very integrity of our nation.”
interpretation would seriously endanger
They wrote that respecting treaty obligations
peace and stability in Northern Ireland. This
was “just as important” as domestic law, and
interpretation cannot have been the real
called for MPs to reject the legislation. “As the
intention of those who framed the protocol
world looks on aghast at the UK - the word
(it certainly wasn’t ours) – and it is therefore
of which was once accepted as inviolable -
vital that we close that option down.
this government’s action is shaming itself and
Reaction embarrassing our nation”.
The publication of the Bill produced an At the AGM of the Bar Council, the Attorney
immediate and highly critical response in the General, Suella Braverman, who provided
UK, in Ireland, in the EU and in the United supportive legal advice to the Prime Minister
States. was asked how Britain could retain “a shred of
credibility” in demanding that other countries
The Opposition in Westminster predictably should follow international law after revealing
condemned the proposed legislation but by far its own willingness to breach agreements.
the strongest comment came from senior Tory
figures including four former party leaders – In Dublin, Taoiseach Micheál Martin said
Theresa May, John Major, Michael Howard and that the introduction of the Bill had seriously
William Hague. A growing number of Tory MPs eroded trust and threatened the prospect of
urged the Prime Minister to scrap what they success in current negotiations. “The stakes
see as an ‘illegal’ act with massive implications are higher now because of the British action.”
for the UK’s international reputation and for The Taoiseach held a 30-minute phone call
the prospects of a positive outcome to the on- with Prime Minister Johnson on 9 September
going EU-UK trade talks. The Prime Minister in which he set out the very strong concerns
addressed a Zoom call with 250 Tory MPs of the Irish Government, and all parties in the
calling on them to back the Bill and to avoid the Dail, about a move which “essentially nullifies
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and undermines what is an international Committee met in London on 10 September
treaty.” The Taoiseach complained that he under its co-chairs – Chancellor of the Duchy
had no prior notice of a move with crucial of Lancaster Michael Gove and Commission
implications for relations between Dublin and Vice President Maroš Šefčovič.
London and for relations on the island. “This
is no way to behave in terms of international Following the meeting the UK side issued the
relations.” following statement:
Foreign Minister, Simon Coveney told the BBC’s This meeting was an opportunity for both
Andrew Marr Show that Britain is behaving in parties to set out their positions. Vice
“an extraordinary way”. Minister Coveney gave President Šefčovič detailed the European
a strong defence of the purpose of the Irish Union’s concerns, and requested that the UK
protocol, which is in threat of being breached withdraw the UK Internal Market Bill. The UK
by the Bill. Responding to the suggestion Government made clear that the legislative
by Prime Minister Boris Johnson that the EU timetable for the Bill would continue as
could blockade movements of British food to planned.
Northern Ireland, the Minister said firmly that
Accordingly, the measures set out in the United
“There is no blockade proposed, and that is
Kingdom Internal Market Bill are designed to
the kind of inflammatory language coming
create a ‘safety net’ that ensures ministers
from No 10 which is spin and not the truth.”
can always deliver on their obligations and
In Brussels, the President of the European take steps to best ensure the prosperity and
Council, Charles Michel, insisted that the protect the enormous progress the people
Withdrawal Agreement, which was ratified by of Northern Ireland have made in recent
both sides, “has to be applied in full” while the decades. The UK Government underlined its
Commission President, Ursula von der Leyen, determination to continue to engage in Joint
tweeted that any breach of the Withdrawal Committee discussions constructively, with
Agreement would undermine the EU’s trust in the aim of finding a satisfactory outcome for
the UK at a very sensitive time in the Brexit both sides.
negotiations. A joint statement by leaders of
The EU, for its part, issued the following:
the European Parliament political groups and
its UK Coordination Group said that “Should the The Vice-President stated, in no uncertain
UK authorities breach – or threaten to breach- terms, that the timely and full implementation
the Withdrawal Agreement […] the European of the Withdrawal Agreement, including
Parliament will, under no circumstances, ratify the Protocol on Ireland / Northern Ireland –
any agreement between the EU and the UK.” which Prime Minister Boris Johnson and his
government agreed to, and which the UK
The EU called for an urgent extraordinary
Houses of Parliament ratified, less than a
meeting of the EU-UK Joint Committee
year ago – is a legal obligation. The European
to provide the UK with an opportunity to
Union expects the letter and spirit of this
elaborate on the Internal Market Bill and to
Agreement to be fully respected. Violating the
explain its highly controversial provisions. The
terms of the Withdrawal Agreement would
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break international law, undermine trust and 8th Round of Negotiations
put at risk the ongoing future relationship
negotiations. Somewhat overshadowed by the Internal
Market Bill, the eighth Round of EU-UK
Vice-President Maroš Šefčovič stated that if the negotiations took place in London on 8-10
Bill were to be adopted, it would constitute an September 2020. This was followed by
extremely serious violation of the Withdrawal meetings between the Chief Negotiators and
Agreement and of international law. their teams in the week of 14 September.
If adopted as proposed, the draft bill would The EU Chief Negotiator, Michel Barnier,
be in clear breach of substantive provisions issued a Statement following the conclusion
of the Protocol, including among other things, of the main talks on 10 September, noting the
the direct effect of the Withdrawal Agreement. EU’s continued commitment to finding a deal,
In addition, the UK government would be in as well as the “flexibility” the EU has shown
violation of the good faith obligation under to date in response to the UK’s negotiating
the Withdrawal Agreement as the draft Bill demands:
jeopardises the attainment of the objectives
The EU remains committed to an ambitious
of the Agreement. The EU does not accept the
future partnership with the UK. […] In order
argument that the aim of the draft Bill is to
to maximise the chances of a deal, the EU has
protect the Good Friday (Belfast) Agreement.
shown flexibility to work around the UK’s red
In fact, it is of the view that it does the
lines and find solutions that fully respect the
opposite.
UK’s sovereignty. In particular with regard to
He reminded the UK government that the the role of the European Court of Justice, the
Withdrawal Agreement contains a number of future legislative autonomy of the UK, and
mechanisms and legal remedies to address fisheries. However, on its side, the UK has not
violations of the legal obligations contained in engaged in a reciprocal way on fundamental
EU principles and interests.
the text – which the European Union will not
be shy in using.
Modern trade agreements are about ensuring
sustainable and fair partnerships [and these
In Washington, senior Figures in Congress
principles] are at the heart of the EU’s
have warned the UK that any future US-
negotiating mandate. For the EU, its Member
UK trade agreement – which would require
States and the European Parliament, any
Congressional approval - must be consistent
future economic partnership, regardless
with the Good Friday Agreement. Richard
of its level of ambition, must ensure that
Neal, Chairman of the Ways and Means
competition is both free and fair. The UK has
Committee which oversees trade agreements,
moreover not engaged on other major issues,
said “I sincerely hope the British government
such as credible horizontal dispute settlement
upholds the rule of law and delivers on
mechanisms, essential safeguards for judicial
the commitments it made during Brexit
cooperation and law enforcement, fisheries,
negotiations particularly in regard to the Irish
or level playing field requirements in the areas
border protocols.”
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of transport and energy. It was made clear that, despite the controversy
surrounding the Internal Market Bill, the
There are also many uncertainties about talks on a future relationship will continue
Great Britain’s sanitary and phyto-sanitary in line with the agreed schedule. Round 9 is
regime as from 1 January 2021. More clarity scheduled for the week of 28 September-2
is needed for the EU to do the assessment for October. Prime Minister Johnson has stated
the third-country listing of the UK. that the negotiations must be concluded by
15 October and that the UK side is prepared
To conclude a future partnership, mutual trust
to walk away from the negotiating table if an
and confidence are and will be necessary. The
agreement is not reached by that date. “We will
Chief Negotiators and their teams will remain
then have a trading arrangement with the EU
in contact over the coming days. At the same
like Australia’s […] That would be an outcome
time, the EU is intensifying its preparedness
for the UK. We will have the freedom to do
work to be ready for all scenarios on 1 January
trade deals with every country in the world.
2021.
And we will prosper mightily as a result.”
The UK Chief Negotiator, David Frost, who had
Joint Ministerial Committee Meeting, 3
just taken his seat in the House of Lords as
September 2020
Baron Frost, issued just a brief Statement:
The twenty-fifth meeting of the Joint Ministerial
We have just completed our eighth round of
Committee (EU Negotiations) took place on 3
negotiations with the EU. We covered all issues
September 2020, with the Chancellor of the
in some detail, including the most difficult
Duchy of Lancaster, Michael Gove, in the chair.
ones. These were useful exchanges. However,
Ministers from the UK Government, from the
a number of challenging areas remain and the
Scottish and Welsh Governments and the
divergences on some are still significant.
Northern Ireland Executive attended.
We have been consistently clear from the
The Committee discussed progress on
start of this process about the basis on which
negotiations with the EU, an update on
agreement is possible between us. Those
transition readiness, the implementation of
fundamentals remain. We have engaged in
the Northern Ireland Protocol, including the
discussions in all areas. We have consistently
legislative timetable, progress with work on
made proposals which provide for open and fair
the UK Common Frameworks Programme and
competition, on the basis of high standards,
interactions with the UK Internal Market.
in a way which is appropriate to a modern
free trade agreement between sovereign and Michel Barnier at IIEA, 2 September
autonomous equals. 2020
We remain committed to working hard to On 2 September 2020, Michel Barnier took
reach agreement by the middle of October, part in an IIEA webinar which attracted a
as the Prime Minister set out earlier this week. record number of attendees from across
“We have agreed to meet again, as planned, in Ireland, the UK, the EU, and internationally. His
Brussels next week to continue discussions.” introductory remarks covered the major issues
arising in the on-going EU-UK negotiations.
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A key section, in which he expresses his The freedom to set its own rules and spend its
concerns over the UK’s lack of engagement, money as it wants, with no constraints from
and discusses the situation relating to Ireland Europe. For all these reasons, the UK insists
and Northern Ireland, is reproduced below. it cannot commit to a level playing field or to
basic safeguards for our future relationship.
We are now less than four months away from Not even when it comes to fundamental rights!
1 January 2021.This is the date chosen by the
UK itself for its “economic and commercial Thankfully, the Withdrawal Agreement means
Brexit”, after the “political Brexit” in January that we have a stable solution for goods traded
this year. Because, as you know, the UK between Ireland and Northern Ireland, without
refused any extension of the transition period. a hard border on the island. This is essential to
We have no more time to lose. We must have protect the all-island economy. This is precisely
a final agreement by the end of October if we why our second important task, before the end
are to have a new partnership in place by 1 of the year, is to ensure the full and effective
January 2021. As I have already explained, implementation of the Withdrawal Agreement
this is the only way to give enough time to – in particular as regards citizens’ rights and
the European Parliament and the Council to the Protocol on Ireland and Northern Ireland.
have their say. This is a legal and democratic This remains an absolute priority for the EU.
necessity.
In recent months, under the impetus of Michael
And, as I have said before, I am particularly Gove, the UK has started to make progress
worried – and disappointed – by the UK’s lack on the implementation of the Protocol. This is
of engagement on three points. First point: encouraging. But important questions remain
Since the start of these negotiations, the UK open.
has refused to engage on credible guarantees
for open and fair competition. Second point: There will be big changes on 1 January 2021.
Since the start of these negotiations, the On that date, the UK will leave the Single
UK has not shown any willingness to seek Market, the Customs Union, all EU policies,
compromises on fisheries. Finally, third point: and all of our international agreements. This
Since the start of these negotiations, the UK is its choice – not ours. Let me mention just a
has been extremely reluctant to include any few examples of what this means concretely:
meaningful horizontal dispute settlement On that date, customs formalities will apply to
mechanisms in our future agreement. all our imports and exports with the UK. On
that date, the EU will no longer recognise UK
Yet, this is the only way to ensure that what type approvals for cars. On that date, financial
we eventually agree on is respected. On all institutions established in the UK will lose the
these issues, we are simply asking to translate benefit of the EU’s ‘financial passports’. No
the political engagements taken in the Political trade agreement – no matter how ambitious
Declaration into a legal text. Nothing more. – can change this.
Nothing less.
Seamus Heaney – who passed away seven
We know well the UK’s argument. It wants a years ago this week – liked to quote the words
clean break from the EU. Full sovereignty. of another great European – Vaclav Havel:
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‘Hope is not optimism, which expects things European Parliament. Her seat is set to be
to turn out well, but something rooted in the taken by Fine Gael’s Louth Councillor Colm
conviction that there is good worth working Markey.
for.’
Section Two: The Evolving
Mairead McGuinness named as Irish Debate
Commissioner
Brexit Readiness Action Plan
On 8 September 2020, the President of the
European Commission, Ursula von der Leyen, On 9 September 2020 the Government
announced that Mairead McGuinness MEP published its Brexit Readiness Action Plan
will, subject to approval by the European –‘Preparing for the End of the Transition Period’
Parliament, become Ireland’s new European a 60 page document covering Readiness
Commissioner following the resignation of Phil Measures at Governmental Level (including
Hogan as Trade Commissioner. Economic and Budgetary Measures; Business
Supports; Communications and Legislation);
Mairead McGuinness, First Vice President of the Trade in Goods (Customs Processes, UK
European Parliament, has been allocated the Landbridge, Agri-Food and Fisheries, Retail
DG Fisma portfolio covering Financial Services, Trade, Medicines and Medical Devices);
Financial Stability and Capital Markets which Connectivity, Transport and Travel; Trade in
has been held by the Latvian Commission Services; Sectoral Issues (Judicial and Law
executive Vice President, Valdis Dombrovskis, Enforcement Cooperation); North-South and
who will take over the Trade portfolio which East-West Relations.
he has overseen on an interim basis since Phil
Hogan’s departure. Introducing the Plan, the Minister for Foreign
Affairs, Simon Coveney, said that he had a
Financial Services is a substantial portfolio, simple message to businesses and the wider
and highly relevant to the ongoing Brexit country. “This time Brexit is for real.”
negotiations. The EU faces a key decision on
the access the City of London will have to the The Minister went on to discuss some of
single market in financial services. There is the implications of the upcoming end to the
a notable Irish involvement in the Financial transition period:
Services area, with Finance Minister Paschal
There is no extra time, there is no more
Donohoe in office as President of the Eurogroup
transition, the UK left the EU in January but
and John Berrigan as Fisma Director General.
the implications of that are just about to
Vice President Dombrovskis will now formally materialise. The preparations are in pretty
take over the Trade Commissioner brief at a good shape, we’ve been working on them
time when the EU is engaged in difficult Brexit across government for years. But we need
negotiations on a future trade agreement a big national effort in the final 3 and a half
while dealing with serious trade tensions with months to make sure no one is left behind. For
both China and the US. Traders the key words from this document are
“To, From and Through”.
Mairead McGuinness represents the Midlands-
North-West constituency of Ireland in the If you sell “to” the UK, if you buy “from” the
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UK or if you move things “through” the UK Section Three: Background
the status quo will not apply from January Material and Further Reading
1st. Customs and SPS checks are going to
be part of trading. You need to make sure
your business is ready for that. The supports Background Material
from government to help you get there are
available and this document once again lays GOV.UK Meeting of the Withdrawal
them all out. Revenue will be writing to tens Agreement Joint Committee on 10 September,
of thousands of businesses tomorrow to make 10 September 2020. https://www.gov.
the point one more time. Do not ignore that uk/government/news/meeting-of-the-
letter. withdrawal-agreement-joint-committee-on-
10-september
Business and Farming Concerns
GOV.UK Prime Minister’s Article in the
UK business has reacted with alarm to a Telegraph: 12 September 2020. https://
statement by Prime Minister Boris Johnson www.gov.uk/government/speeches/prime-
to the effect that no deal would be a ‘good ministers-article-in-the-telegraph-12-
outcome’ for the UK. The CBI said that failure to december-2020.
compromise in scheduled talks would severely
European Commission Statement by Michel
damage the country’s fragile economic
Barnier following Round 8 of negotiations for a
recovery. “Amid all the noise and negotiations
new partnership between the European Union
businesses in the UK and EU remain clear – a
and the United Kingdom. 10 September 2020.
good deal is essential. An agreement will be
https://www.ec.europa.eu/commission/
the foundation for post-Covid recovery across
presscorner/detail/en/STATEMENT_20_1612
the continent. The British Retail Consortium
has commented that no deal would be the GOV.UK Lord Frost statement after Round 8 of
worst outcome for consumers. Hundreds of the negotiations, 10 September 2020. https://
millions of pounds in tariffs would be added to www.no10media.blog.gov.uk/2020/09/10/
the cost of food in UK supermarkets after a no lord-frost-statement-after-round-8-of-the-
deal exit with a disproportionate impact on the negotiations
poorest households.
European Commission Statement by
In Northern Ireland, the Ulster Farmers’ Union the European Commission following the
has warned that failure to reach a good post- extraordinary meeting of the EU-UK Joint
Brexit trade deal could lead to the devastation Committee, 10 September 2020.https://
of Northern Ireland’s farming industry. Farmers www.ec.europa.eu/commission/presscorner/
could quickly become uncompetitive if they details/en/STATEMENT_20_1607
are burdened by higher costs in a market
which could be flooded by cheaper imports UK Government United Kingdom Internal
from around the world. “The simple solution Market Bill, 9 September 2020. https://
for us is that we want the UK to have as close services.parliament.uk/bills/2019-21/
a future trading arrangement with the EU as it unitedkingdominternalmarket.html
has at present.”
GOV.UK Bill introduced to protect jobs and
trade across the whole of the United Kingdom,
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8 September 2020. https://www.gov.uk/ issues-warning-over-uk-bill/
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brexit-deal-news-eu-boris-johnson- bombshells. Politico, 7 September 2020.
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Telegraph Michel Barnier blocks fisheries comment/2020/0904/1163282-brexit-
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selfish obstinance in Brexit talks. Politico, 2 fd2e9f9d3b17
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Minister Coveney at Launch of Brexit Readiness protocol-1.4348477
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Irish Times Bad Brexit trade deal could
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Further Reading
Writers and Artists. Goodbye Europe.
Weidenfeld & Nicolson
.
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