Act No. 226 / 2023 Coll.
Act amending Act No. 143 / 2001 Coll., on the Protection of Competition and on the Amendment of Certain Acts (Law on the Protection of Competition), as amended, and Act No. 273 / 1996 Coll., on the Jurisdiction of the Competition Authority, as amended
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Effective from 29.07.2023
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29.07.2023
14.07.2023
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226
THE LAW
of 21 June 2023
amending Act No. 143 / 2001 Coll., on the Protection of Competition and amending certain laws (Law on the Protection of Competition), as amended, and Act No. 273 / 1996 Coll., on the jurisdiction of the Competition Authority, as amended
Parliament has decided on this law of the Czech Republic:
Amendment to the Competition Act
Act No. 143 / 2001 Coll., on the Protection of Competition and on the amendment of certain laws (Act on the Protection of Competition), as amended by Act No. 340 / 2004 Coll., Act No. 484 / 2004 Coll., Act No. 127 / 2005 Coll., Act No. 361 / 2005 Coll., Act No. 71 / 2007 Coll., Act No. 296 / 2007 Coll., Act No. 155 / 2009 Coll., Act No. 188 / 2011 Coll., Act No. 360 / 2012 Coll., Act No. 293 / 2016 Coll., Act No. 183 / 2017 Coll., Act No. 262 / 2017 Coll., Act No. 261 / 2021 Coll. and Act No. 417 / 2021 Coll., is amended as follows:
1. In Article 1 (2), the words "incorporating the relevant European Union23) shall be inserted after the word" the law, "as well as the directly applicable European Union24), and '.
Footnote 23 reads:
"(23) Directive (EU) 2019 / 1 of the European Parliament and of the Council of 11 December 2018 on strengthening the position of competition authorities in the Member States so that they can promote rules more effectively and ensure the proper functioning of the internal market."
Footnote 24 reads:
"(24) Regulation (EU) 2022 / 1925 of the European Parliament and of the Council of 14 September 2022 on fair markets open to competition in the digital sector and amending Directives (EU) 2019 / 1937 and (EU) 2020 / 1828 (Digital Market Regulation). Regulation (EU) 2022 / 2560 of the European Parliament and of the Council of 14 December 2022 on foreign subsidies distorting the internal market. '
2. In Article 2, the following paragraph 3 is added:
"(3) For the purposes of this Act, the communication of reservations shall mean a written notification to the parties of a potential distortion of competition in which the Office of Competition (hereinafter referred to as" the Office ') shall communicate a description of the action, indicate the main evidence, communicate the legal qualifications and administrative penalties it intends to impose.'
3. In Article 3 (1), the words "for the protection of competition (hereinafter referred to as" the Authority ')' are deleted.
4. Paragraph 7 (2) reads as follows:
"(2) The Office may suspend the proceedings referred to in paragraph 1 and decide to accept commitments which the parties to the proceedings of the Office have jointly proposed in favour of maintaining effective competition, the fulfilment of which will remove the concerns of its possible distortion. In such a decision, the Office may also lay down the conditions or obligations necessary to ensure that those obligations are fulfilled. Commitments may not be proposed in proceedings concerning the conclusion of a classified horizontal agreement or concerted practices aimed at distorting competition. ';
5. In Article 7 (3), the words "written notice in which the Office shall communicate the essential facts of the case, their legal assessment and references to the main evidence of them contained in the administrative file (hereinafter referred to as" notice of reservations') 'are replaced by the words "notice of reservations'.
6. In Article 7 (4) of the Introductory Part of the Provisions and in Article 11 (5) of the Introductory Part of the Provisions, the words "termination of proceedings' are replaced by the words" acquisition of legal power of decision '.
7. In Article 7 (4) (c), the words "pursuant to paragraph 2 'shall be inserted after the words" Decision'.
8. Paragraph 11 (3) reads as follows:
"(3) The Office may suspend the proceedings referred to in paragraph 2 and decide to accept commitments which the parties to the proceedings of the Office have jointly proposed in favour of maintaining effective competition, the fulfilment of which will remove the concerns of its possible distortion. In such a decision, the Office may also lay down the conditions or obligations necessary to ensure that these obligations are fulfilled. ';
9. In Article 11 (5) (c), the words "pursuant to paragraph 3 'shall be inserted after the words" Decision'.
10. in Article 13 (a) and Article 13 (b) of the introductory and final parts of the provisions, the word "completed" shall be inserted after the word "last."
11. in Article 19a, the following paragraphs 4 to 6 are inserted after paragraph 3:
"(4) The Authority may suspend the procedure referred to in paragraph 3 and decide to accept the commitments proposed by the Authority's public administration in order to maintain effective competition, the fulfilment of which will remove the concerns of its possible distortion. In such a decision, the Office may also lay down the conditions or obligations necessary to ensure that those obligations are fulfilled.
(5) The obligations referred to in paragraph 4 may be proposed in writing by the public authority to the Office no later than 15 days after the date on which the Office has delivered the notice of reservations to it; the subsequent proposal shall be taken into account by the Office only in cases of particular concern. The public authority shall be bound by its proposal to the Office and, where appropriate, to third parties, and shall not proceed from the submission of the application to the Office's decision pursuant to paragraph 4 in a manner which is the subject of the Office's reservations.
(6) Once the decision referred to in paragraph 4 has become final, the Office may reopen the procedure and issue the decision referred to in paragraph 3 if:
(a) the conditions applicable to the decision referred to in paragraph 4 have changed substantially;
(b) a public authority acts in breach of the obligations referred to in paragraph 4; or
(c) the decision referred to in paragraph 4 shall be made on the basis of false or incomplete evidence, data and information. ";
Paragraph 4 shall become paragraph 7.
12. The heading "Scope 'is inserted under the title of Section 20.
13. in Paragraph 20 (1) (c), the words "and their final decisions" shall be deleted;
14. In Paragraph 20, at the end of paragraph 1, the dot is replaced by a comma and the following point (d) is added:
"(d) publish its final decisions."
15. in Paragraph 20 (5), the word "Office" is replaced by the word "Authority."
16. In Paragraph 20, paragraph 6 is added:
"(6) The Office shall issue an annual report on its activities under this Act, inform the Government and Parliament thereof and publish it on its website. The annual report shall include in particular information on the number of administrative procedures opened and completed, the appointment and removal of the President and Vice-Presidents and the amount of the Office's revenue, including changes to the previous period. ';
17. in Article 20a (3) (c), the word "others" shall be deleted and the word "authorities" shall be replaced by "authorities of others";
18. in Article 20a (3), point (d) is deleted;
Points (e) to (i) shall be renumbered (d) to (h).
19. in Paragraph 20a (3) (e), the word "Authority" shall be replaced by the word "Authority."
20. In Article 20a, at the end of paragraph 3, the dot is replaced by a comma and the following point (i) is added:
"(i) require competitors to cooperate necessary for the performance of their tasks under the directly applicable European Union rules governing fair markets open to competition in the digital sector (25) and foreign subsidies distorting the internal market (26).
(25) Regulation (EU) 2022 / 1925 of the European Parliament and of the Council of 14 September 2022 on fair markets open to competition in the digital sector and amending Directives (EU) 2019 / 1937 and (EU) 2020 / 1828 (Digital Market Regulation).
(26) Regulation (EU) 2022 / 2560 of the European Parliament and of the Council of 14 December 2022 on foreign subsidies distorting the internal market. '
21. in Paragraph 20a (4) (c), the words "authorities of others" shall be replaced by the words "authorities of others";
22. in Article 20a (4) (d), the words "to the authorities of others" shall be replaced by the words "to the authorities of others";
23. in Article 20a (4), point (e) is deleted;
Point (f) shall be renumbered as point (e).
24. In Paragraph 20a, at the end of paragraph 4, the dot is replaced by a comma and the following point (f) is added:
"(f) to provide synergies to the Commission in accordance with directly applicable European Union rules governing fair markets open to competition in the digital sector (25) and foreign subsidies distorting the internal market (26)."
25. Paragraph 21 (2) reads:
"(2) After preliminary examination of a case under Article 20 (1) (a) or (b), without initiating proceedings under this law, the Authority may postpone the case by way of a resolution, in particular in view of the degree of harmful effect of the conduct on competition, the nature of the conduct and the manner in which it is carried out, the importance of the market concerned and the number of consumers concerned. The order to postpone the case in accordance with the first sentence shall only be recorded in the file; the provisions of the law governing liability for offences and their proceedings concerning information on the postponement of a case shall not apply. ';
26. The heading of Section 21b reads: "Getting to know the documents of the decision."
27. in Article 21b, the first sentence is deleted;
28. After Paragraph 21b, the following Section 21ba is inserted:
Confidential identity
(1) The identity of the complainant who provides supporting documents and information to the Office may be kept secret by the Office if there are reasonable grounds for suspecting that the legitimate interests of the complainant may be jeopardised or damaged without the confidentiality of the identity, and he shall request the identity at the latest at the same time as the disclosure of such supporting documents and information.
(2) The Office shall pursue its activities in such a way as not to undermine the purpose of the identity of the complaint giver.
(3) The provisions of paragraphs 1 and 2 shall not apply to a public authority, a State, a local authority and a legal person governed by public law. "
29. in Article 21c (1) and (3), the words ", records of telecommunications traffic, data on telecommunications traffic or records obtained in the course of the surveillance of persons and goods" shall be inserted after the words "protected secrets."
30. in Article 21c (4), the words "waiving the imposition of a fine and the application for a reduction of a fine pursuant to Article 22a (5)" shall be replaced by the words "leniency, application for a reduction of a fine by settlement, settlement protocols" and the word "Office" shall be deleted.
31. in Article 21c (5), the words "waiving the imposition of a fine or the application for a reduction of a fine pursuant to Article 22a (5) or the application for a reduction of a fine pursuant to Article 22a (6) (hereinafter referred to as" non-imposition or reduction of a fine ") shall be replaced by the words" leniency or application for a reduction of a fine by adjustment, "the word" Office "shall be deleted and the number" 1 "shall be replaced by" 3. "
32. in Article 21c, the following paragraph 6 is added:
"(6) An application for confidentiality of the identity of the complaint giver, the supporting documents and information provided by the complaint giver, the identity of which the Office has kept secret, as well as the calls and communications sent by the Office in connection with the request for confidentiality of the identity of the complainant giver, shall be excluded from access to the file. The Office shall, after the communication has been issued, allow the persons authorised to consult the file to be aware of documents which are excluded from the consultation of the file only in a form which does not undermine the confidentiality of the identity of the complainant. ';
33. in Article 21ca (1), the words "applications for non-imposition or reduction of a fine" shall be replaced by "applications for leniency or for reduction of a fine by straightening," and the words "pursuant to Article 22ba (6)" shall be replaced by "straightening."
34. In Paragraph 21ca (2), the words "law enforcement authorities and others' shall be inserted after the word" disclosure ', the word "until' shall be deleted and the word" acquisition 'shall be inserted after the word "investigation or'.
35. in Article 21ca (3), the words "non-imposition or reduction of a fine" shall be replaced by the words "leniency and applications for reduction of the fine by straightening."
36. in Article 21d, paragraph 2 is deleted;
Paragraph 3 shall become paragraph 2.
37. in Article 21d (2), the words "pursuant to Article 7 (2) or Article 11 (3) or Article 17 (4)" shall be deleted;
38. in Article 21f (5), the words "the business premises of the competitor in which" shall be replaced by the words "the competitor in whose business premises."
39. in Paragraph 21g (2), the words "and paragraph 8" shall be deleted;
40. The following Section 21ga is inserted after § 21g, which includes the title:
Use of the recording of telecommunications traffic, the data on telecommunications traffic or the recording made in the monitoring of persons and objects
The Office shall be entitled to use, in the exercise of its supervision of the conclusion of a classified horizontal agreement or concerted practice aimed at distorting competition, as evidence of the recording of telecommunications traffic, the data on telecommunications traffic or the recording made in connection with the monitoring of persons and goods procured in criminal proceedings.
(a) for the offence referred to in Article 248 (2) of the Criminal Code and transmitted to the Office by the criminal authority after the completion of the preparatory procedure; or
(b) for one of the offences referred to in Part Two, Title VI, Part 3 of the Criminal Code and transmitted to the Office when the case is committed or referred to the Criminal Code. ';
41. in Article 21h (4), the word "Authority" shall be replaced by the word "Authority" and the word "Authority" shall be replaced by "Authority."
42. In Article 22 (1) and Article 22a (1), the word "or" and (g) shall be added at the end of point (f).
Points (h) and (i) shall be renumbered as points (g) and (h).
43. In Articles 22 (1) (g) and 22a (1) (g), the words "or breach of the obligation to carry out on-the-spot investigations in commercial premises or in non-commercial premises" shall be inserted after the words "than commercial premises."
44. in Article 22 (1) and in Article 22a (1), the word "or" shall be replaced by a dot and paragraph (h) shall be deleted at the end of point (g);
45. in Paragraph 22, the following paragraph 2 is inserted after paragraph 1:
"(2) A natural person commits an offence by:
(a) does not provide the Office with complete, correct or true business records pursuant to Paragraph 21e (1); or
(b) infringes the obligation to carry out on-the-spot investigations in commercial or non-commercial premises pursuant to Article 21f (4). "
Paragraph 2 shall become paragraph 3.
46. in Article 22 (3), the words "(g), (h) or (i)" shall be replaced by the words "or (g) or (2)."
47. in Paragraph 22a, the following paragraph 2 is inserted after paragraph 1:
"(2) A natural person, legal or business, commits an offence by:
(a) does not provide the Office with complete, correct or true business records pursuant to Paragraph 21e (1); or
(b) infringes the obligation to carry out on-the-spot investigations in commercial or non-commercial premises pursuant to Article 21f (4). "
Paragraphs 2 to 6 shall become paragraphs 3 to 7.
48. in Paragraph 22a (3), the words "(g), (h) or (i)" shall be replaced by the words "or (g)" after the words "1% of the net turnover achieved by the competitor during the last financial year" shall be inserted after the offence referred to in paragraph 2, "the words" shall be deposited "shall be inserted after the sentence" the rate of the fine shall not be fixed from the turnover of the competitor if the purpose of the fine would not be achieved. "
49. in Paragraph 22a (4):
"(4) Where more than one competitor has committed the same offence, they shall be jointly and severally liable for payment of the fine imposed. ';
50. in Paragraph 22a, the following paragraph 5 is inserted after paragraph 4:
"(5) Where, pursuant to paragraph 3, a fine is imposed by an association of competitors, up to 10% of the total net turnover achieved during the last completed financial year may be imposed by its members. If the fine is not paid in full, each member of the association, represented in the decision-making body of the association, shall be liable for the payment of the fine imposed up to 10% of its net turnover for the last completed financial year. However, if the fine is not paid in full, everyone who was a member of the association shall be liable for the payment of the fine up to 10% of its net turnover over the last completed financial year. A member of an association who was not a member of the association at the time of the offence or who proves that the decision of the association leading to the distortion of competition has not been implemented and did not know or rejected the decision before the administrative procedure was initiated. '
Paragraphs 5 to 7 shall be renumbered paragraphs 6 to 8.
51.Paragraph 22a (6) reads:
"(6) For the offence referred to in paragraph 1 (b) committed in connection with the award or award of a public contract or in connection with the conclusion of a public passenger transport service contract, the Office, together with the fine referred to in paragraph 3, may impose a ban on the performance of public contracts and the provision of public passenger transport services. A competitor whose fine under Paragraph 22bb has been reduced may be ordered to prohibit the performance of public contracts and the provision of public passenger transport services for a maximum period of 1 year. This prohibition may not be imposed on a competitor who has been waived from imposing a fine under § 22ba (1) (a) or whose fine has been reduced under § 22ba (1) (b). '
52nd Paragraph 22a (7) reads as follows:
"(7) The penalty for the prohibition on the performance of public contracts and the provision of public passenger transport services is that a legal person or an undertaking is prohibited from concluding contracts for the performance of public passenger transport services during the period of the sentence. This prohibition shall not apply in the case of the use of a negotiated procedure without publication where the award of a contract is necessary as a result of an extremely urgent circumstance which the contracting authority could not foresee or cause, and the deadlines for open procedures, restricted procedures or negotiated procedures with publication cannot be complied with. The period of time for which the prohibition on the performance of public contracts and the provision of public passenger transport services is imposed shall begin on the date on which the decision imposing such a prohibition became final. ';
53.In Article 22a (8), the words "and the provision of public passenger transport services" shall be inserted after the words "contracts."
54. in Article 22aa (1), the following point (c) is inserted after point (b):
"(c) fails to fulfil the obligation under Paragraph 19a (4),"
Points (c) to (f) shall be renumbered (d) to (g).
55. in Paragraph 22aa (1) (f), the words "or breach of the obligation to carry out on-the-spot investigations" shall be inserted after the word "location."
56. in Paragraph 22aa (2), "(d), (e) or (f)" shall be replaced by "(e), (f) or (g)" and "(c)" shall be replaced by "(c) or (d)."
57. in Article 22b (8), the words "Article 78 (3)" shall be inserted after the words "third."
58. in Paragraph 22b, the following paragraph 10 is added:
"(10) The person concerned by the conduct of the suspect shall not be informed of the postponement. ';
59.
Compliance
(1) If the Office recognises a competitor guilty of an infringement pursuant to § 22 (1) (b) or § 22a (1) (b),
(a) refrain from imposing a fine where the competitor:
1. as the first of all competitors, submit to the Office information and supporting documents on a classified agreement or concerted practice aimed at distorting competition ("the classified agreement") which the Office has not yet obtained and which justify a targeted on-the-spot investigation or demonstrate the existence of such a classified agreement;
2. admit participation in a classified agreement,
3. did not pressure other competitors to participate in the classified agreement; and
4. provide the Office with all documents and information available to it on the classified agreement; or
(b) reduce by up to 50% the amount of the fine which the parties to the proceedings have informed in the notice of reservations, if the competitor submits to the Office information and documents relating to the classified agreement, which have significant added value in relation to the evidence value of the documents and information received by the Office and fulfils the conditions set out in points (a) (2) and (4); taking into account the ranking of the competitors, the time when the Office submits information and documents on the classified agreement and the extent to which the information and documents strengthen their nature or details to the Office's ability to prove the classified agreement.
(2) The Authority may waive the imposition of a fine or reduce the fine only on the basis of a leniency request from a competitor who:
(a) terminate participation in a classified agreement;
(b) actively helps clarify the case;
(c) does not destroy, falsify or conceal evidence or relevant information, even at the time when he considered applying for leniency;
(d) without the permission of the Office, shall not disclose or provide any information on the submission or content of an application for leniency before the Office issues a notice of reservations in this matter, unless it does so with other competition authorities; and
(e) provide information on any past or possible future leniency requests made in connection with an alleged classified agreement with any competition authority of another Member State or the Commission.
(3) The Office may maintain order for the competitor to collect the information and supporting documents necessary for the application to waive the imposition of a fine by setting a time limit for its submission. The information and supporting documents submitted within the time limit shall be deemed to have been submitted at the time of the request for the maintenance of the order.
(4) On the basis of a summary request, the competitor shall maintain the order of leniency. A summary request may be made where a competitor has submitted a leniency request or a request to maintain order with the Commission in the same case and the application described in the hearing affects the territories of more than 3 Member States. Where the summary application contains the particulars referred to in paragraph 8 and the Office does not register any other application on the same subject, it shall inform the applicant accordingly. The Office shall be entitled to invite competitors to complete the facts contained in the summary application.
(5) If the Authority intends to initiate infringement proceedings in accordance with paragraph 4, it shall invite the competitor to submit a leniency application and shall set a time limit for that. Such a request shall be deemed to have been made at the time when the application to maintain the order of order is made within the time limit laid down by the Office and in the same case as the application to the Commission.
(6) A request to waive the imposition of a fine shall be made no later than the date on which the notice of reservations was delivered to the competitor. An application for a reduction of the fine shall be submitted no later than 15 days after the date on which the notice of reservations was delivered to the competitor. The request for leniency, which was submitted later, shall be discussed only in cases of special consideration.
(7) The leniency application may be withdrawn within 15 days of the expiry of the period for its submission. The request for leniency withdrawn and the supporting documents and information accompanying it shall not be taken into account in the infringement proceedings.
(8) The leniency application, the order of order and the summary application contain, in addition to the general requirements laid down in the administrative rules, the identification of the competitors and a description of the actions. The scope of the competitor identification data and the description of the action shall be laid down in the implementing legislation. ';
60. The following Section 22bb is inserted after Section 22ba, which includes the title:
Settlement
(1) After the initiation of the infringement proceedings, the Authority may, in order to achieve procedural savings, initiate a settlement if the party to proceedings has communicated in writing within the time limit set by the Office that it will enter the settlement; the communication made after the deadline may not be taken into account by the Office.
(2) In the context of a settlement, a party may submit a request for a reduction of the fine by a settlement in which it admits a distortion of competition which it has been informed in the notice of reservations. The application must be lodged no later than 15 days after the date on which the notice of the reservations was served on the party. An application submitted later shall be taken into account by the Office only in cases of special consideration.
(3) The oral hearing in the context of the settlement shall be held separately with each party.
(4) The Office may at any time terminate the settlement wholly or in relation to one or more parties to the proceedings in view of the nature and seriousness of the distortion of competition or consider that the achievement of procedural savings cannot be expected. If a party does not submit a request pursuant to paragraph 2, the settlement with that party shall be terminated.
(5) Where the Office recognises a party to the proceedings guilty of distortion of competition, it shall, upon request pursuant to paragraph 2, reduce the fine which it has informed the party in the notice of reservations by 10 to 20%. It shall take account of the degree of procedural savings achieved, in particular the complexity of the proceedings, the duration of the proceedings and the cooperation of the parties in the context of the settlement. ';
61.Paragraph 22c (1) reads as follows:
"(1) Order fines may be imposed on those who make it difficult for the Office to proceed by:
(a) does not provide commercial records at the written invitation within the prescribed time limit; or
(b) shall not appear at the summons without an appropriate apology. ';
62. In Paragraph 22c, the following paragraphs 2 and 3 are inserted after paragraph 1:
"(2) Where this is required to ensure the conduct and purpose of the proceedings, a measure may be imposed on a competitor who infringes the obligation to carry out on-the-spot investigations in commercial or non-commercial premises provided for in Article 21f (3).
(3) Order fines may be imposed up to CZK 300,000 or 10% of the average daily net turnover achieved by the competitor for the last completed financial year for each day of non-compliance. The fine rate shall not be fixed on the turnover of the competitor if the purpose of the fine is not thereby achieved. ';
Paragraph 2 shall become paragraph 4.
63. In Paragraph 22c (4), the amount "CZK 1 000 000" is replaced by "CZK 10 000 000."
64. After Paragraph 22c, the following Section 22d is inserted:
Enforcement of non-cash transactions by imposing enforcement fines
(1) When executing an execution for non-cash transactions by imposing coercive fines, a fine of up to CZK 300,000 or 10% of the average daily net turnover achieved by the competitor for the last completed financial year for each day of non-compliance may be imposed. The fine rate shall not be fixed on the turnover of the competitor if the purpose of the fine is not thereby achieved.
(2) The fine may also be imposed repeatedly. The total amount of repeatedly imposed coercive fines may not exceed CZK 10 000 000 or 10% of the net turnover achieved by the competitor during the last completed financial year. "
(65) In Paragraph 23 (2), the words "and for the infringement of the obligation to maintain the on-the-spot investigation at commercial premises or in non-commercial premises" shall be inserted after the words "on-the-spot investigation at commercial premises";
66. In Article 23, the words "and the duration of the proceedings before the Commission or before the competition authority of another Member State 'shall be added at the end of the text of paragraph 3.
67.In Paragraph 23 (4) (d), the words "competition authority of a Member State" are replaced by the words "competition authority of another Member State."
68. In Part One, the following Title IX is inserted after Title VIII:
INTERNATIONAL COOPERATION
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Regulation Information
| Citation | Act No. 226 / 2023 Coll., amending Act No. 143 / 2001 Coll., on the Protection of Competition and on the Amendment of Certain Acts (Law on the Protection of Competition), as amended, and Act No. 273 / 1996 Coll., on the Jurisdiction of the Authority for the Protection of Competition, as amended |
|---|---|
| Regulation Type | Law |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 14.07.2023 |
|---|---|
| Effective from | 29.07.2023 |
| Effective until | - |
| Status | Valid |
Parliamentary Paper:
Paper No. 283
The regulation text is for informational purposes only.
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