The European Antitrust Review 2014 • Section 3: Country chapters
In 2013, Sweden celebrated the 20th anniversary of its modern competition law regime. The competition law rules are currently contained in the Swedish Competition Act (2008:579) (the Act), which entered into force on 1 November 2008. However, the substantive antitrust provisions have been the same since 1993.1 The Act targets three types of action that may distort efficient competition, namely: anti-competitive cooperation; unilateral conduct constituting abuse of a dominant position; and structural changes (ie, mergers and other types of concentrations). If a practice also affects trade between EU member states, the Swedish Competition Authority (the SCA) will apply articles 101 and 102 of the Treaty of the Functioning of the European Union (TFEU). As the national provisions are materially identical to the corresponding provisions of the TFEU, judgments from the Court of Justice of the European Union (the European Court of Justice) may be used to interpret the national provisions even in cases where there has been no effect on trade between member states and thus no infringement of TFEU provisions.
In addition to these traditional types of substantive provisions, the Act also contains a specific provision that regulates the conduct of publicly owned entities on competitive markets. This amounts to a prohibition against anti-competitive public sales. This provision is a peculiarity of the Act and applies to all public undertakings and authorities acting on a market. There is no prerequisite of dominance, and under this provision the SCA may request the prohibition of sales activities by public entities where such activities are considered to distort or impede effective competition. The threshold for intervention is therefore considered to be lower than under the general provision regulating unilateral conduct.
Currently, enforcement of the substantive rules is largely in the hands of the SCA. However, public enforcement is supplemented by private action. The Act expressly enables private parties (ie, both legal and natural persons) to initiate claims for damages for competition law infringements. In addition, private parties can bring claims for specific performance or seek declaratory judgments based on aspects of competition law on the basis of the general grounds laid out in the Code of Judicial Procedure (1942:740).
In addition to these two main avenues, private parties, insofar as they qualify as undertakings, also have a ‘legal secondary right’ to bring claims under the Act. However, this right is not, strictly speaking, considered a private enforcement claim: first, it does not involve civil claims or counterclaims; and second, the legal secondary right is the right of an undertaking that has been affected by an infringement of the prohibition against anti-competitive cooperation or abuse of a dominant position to file a claim before the Market Court (the highest court regarding competition matters in Sweden in cases brought by the SCA) should the SCA decide not to impose an obligation to terminate such an infringement in a particular case.2
Section 2.1 of the Act reflects article 101 of the TFEU. Hence, under section 2.1, agreements between companies, decisions by associations of companies and concerted practices which have as their object or effect the prevention, restriction or distortion of competition within Sweden are unlawful if they do not fall within an applicable exemption. In short, there are three general conditions for section 2.1 of the Act to apply, namely that there is an agreement (or concerted practice), that there is restriction of competition and that the effect is at least appreciable.
Section 2.1, in line with article 101 TFEU, applies in particular to agreements which:
- directly or indirectly fix purchase or selling prices, or any other trading conditions;
- limit or control production, markets, technical development or investment;
- share markets or sources of supply;
- apply dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage; or
- make the conclusion of contracts subject to acceptance by the other parties of supplementary obligations, which by their nature or according to commercial usage have no connection with the subject of such contracts.
In the same way as under article 101 TFEU, an agreement may benefit from an exemption provided that the agreement fulfils each of the following conditions:
- it contributes to improving the production or distribution of the products or services, or to promoting technical or economic progress;
- it allows consumers a fair share of the resulting benefit;
- it imposes on the companies concerned only restrictions which are indispensable; and
- it does not afford such companies the possibility of eliminating competition in respect of a substantial part of the products or services in question.
There are also several block exemptions in place that are specifically mentioned in aection 2.3 of the Act. Six of the block exemptions (those relating to agreements on specialisation, research and development, motor vehicles, insurance, technology transfer and vertical agreements generally) refer to the corresponding block exemptions under EU rules, which therefore apply even where there is no effect on cross-border trade. However, there is an additional block exemption relating to taxi services which is specific to Sweden. This states, inter alia, that joint booking centres (which set prices) and joint marketing are exempted.3 Section 2.5 of the Act contains a further, more generous, exemption for taxi companies or joint booking centres provided that these cover a maximum of 40 cars. Furthermore, there are specific exemptions in section 2.4 relating to agricultural associations and its members.
The gravest infringement of section 2.1 would, of course, be a cartel. To entice cartelists to come forward, Sweden has had a leniency programme in place since 1 August 2002. The current leniency provisions are set out in sections 3.12–3.15 of the Act. The leniency programme provides companies with the possibility of obtaining immunity from fines, or a reduction in fines, if they assist the SCA with detecting and prosecuting infringements of section 2.1 of the Act or article 101 TFEU.
The SCA has issued guidelines clarifying its interpretation and application of the leniency programme. Guidelines were first issued in June 2002, and were amended in March 2006, October 2008 and October 2009.4 The guidelines are modelled on the European Commission’s 2006 Leniency Notice and the ECN model programme.5 The two systems are thus relatively similar, albeit with slight differences, such as the fact that the Swedish programme does not contain a marker system.
The SCA has worked actively to attract leniency applications and there appears to have been a slight uptake in the number of leniency applications in recent times, although few cartel investigations have resulted in infringement decisions.
Recent case law
As mentioned above, relatively few cartel cases have lead to an infringement decision, and in recent years most cartel investigations have been settled by fine orders (see ‘Enforcement’, below). The most recent cartel decision, which concerned bid rigging in a tender for the transportation of waste, was taken in December 2011 and subsequently settled.6 The companies which accepted the fine were two of the six companies that had submitted offers in the tender. The fines amounted to 175,000 kronor and 293,000 kronor respectively. The relatively modest amounts perhaps reflect the limited effect of the agreement: the cartel related to one tender in one city, lasted for a little over one month and the parties had not won the contract.
The only cartel case in recent years that has not been settled is the charter coach cartel. The decision by the SCA was taken late in 20107 and the judgment by the District Court of Stockholm, which was not appealed, was handed down in February 2012.8 In 2007, two of Sweden’s largest coach companies decided to merge. Due to the financial difficulties of the Intended acquirer, the merger was to be carried out in three stages over a period of time. The merger as it was first intended was never realised. Although the initial target ultimately bought the acquirer, at the time of the initial merger, the acquirer bought a minority stake in the target. At this point, the companies started to cooperate on, inter alia, pricing and marketing. According to the District Court of Stockholm, the acquirer at that time held only normal minority rights and was therefore not in the position of sole or joint control. The target and the acquirer thus remained separate undertakings and the cooperation therefore constituted an infringement of section 2.1. The court imposed fines of 6.8 million kronor and 4.6 million kronor, respectively. An interesting twist is that the fines for both companies were reduced by 30 per cent as the CEO of the merged company (after the target bought the acquirer) cooperated with the SCA.
There have also been a few decisions on anti-competitive cooperations that have not amounted to a cartel. One example is the May 2011 decision concerning the Swedish Automobile Sports Federation (SASF)9 in which the SCA found that a ban by the SASF on its members to enter competitions not sanctioned by the SASF constituted an infringement of competition law. The decision was upheld by the Market Court on appeal. The media coverage of the SASF case spurred an increased interest from the sports sector and the SCA has thus received many complaints in this area. A case in point is the hockey league case, where the SCA imposed interim measures to reverse a decision by the Swedish Hockey League to ban short-term contracts. The SCA took issue with the ban as it resulted in hockey players from the American NHL not being able to play in the Swedish Hockey League during the NHL lockout in the 2012–2013 season. The decision to impose interim measures was reversed by the Market Court on appeal as it found that the Swedish Hockey League’s ban on short-term contracts was grounded on acceptable fairness arguments, in particular that a team should in principle be the same over the season.
Anti-competitive unilateral conduct
As with anti-competitive cooperation, the national rules on abuse of a dominant position are materially identical to the corresponding provisions of the TFEU. In particular, the provision targets unilateral conduct that:
- directly or indirectly imposes unfair purchase or selling prices or other unfair trading conditions;
- limits production, markets or technical development to the prejudice of consumers;
- applies dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage; or
- makes the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which by their nature or according to commercial usage have no connection with the subject of such contracts.
There has been relatively little enforcement in relation to this provision in recent years. One recent decision to close an investigation relating to alleged abusive rebates by Posten (the Swedish public postal operator) is interesting in that it explicitly stated that the SCA based its assessment on the Commission’s Guidance Paper on enforcement priorities in applying article 102 TFEU.10 This is a welcome indication that the SCA will adhere to the same enforcement priorities as those laid down in the Guidance. It is particularly satisfying as the case concerned rebates where the Guidance provides a welcome step away from a strict per se approach, which at times has been sanctioned by the EU courts.
Recent case law
The main case on the abuse of a dominant position is the TeliaSonera case. The case originates from a decision taken by the SCA back in 2004 that TeliaSonera had abused its dominant position on the market for wholesale ADSL products.11 The lengthy judicial process is in part due to a reference to the European Court of Justice for a preliminary ruling.12 In a judgment of April 2013, the Market Court agreed that TeliaSonera had abused its dominant position on the market for wholesale ADSL products but reduced the amount of the fine to a quarter of that imposed by the District Court (35 million kronor instead of 144 million kronor). The Market Court also found that the abuse was significantly less extensive than the SCA claimed. The Market Court did, however, accept that a margin squeeze could exist even if the product in question was supplied on a voluntary basis on a non-regulated market (ie, could not constitute an essential facility). The judgment is interesting in that it clarifies the evidentiary threshold that needs to be met by the SCA when claiming an infringement: the Market Court stated that the SCA must present a ‘robust’ case that ‘reliably proves’ an infringement.
The SCA has not taken any infringement decisions under Section 2.7 of the Act or article 102 TFEU since the TeliaSonera case. There have, however, been some interesting cases brought under the right to a secondary right of action mentioned above. In 2009, after the SCA rejected a complaint by Bring Citymail against a rebate scheme introduced by Posten, Bring Citymail made use of its secondary right of action by bringing a claim before the Market Court. In 2011, the Market Court found in Bring Citymail’s favour and banned Posten’s rebate scheme. The Market Court imposed a penalty of 100 million kronor on Posten.13
Anti-competitive public sales
Apart from standard antitrust rules and merger control, as of January 2010, Swedish competition law also includes a ban on ‘anti-competitive public sales’. In short, local or central government, as well as companies owned by any of these, fall under a new provision contained in section 3.27 of the Act. Under section 3.27, the SCA may request that the District Court of Stockholm order the prohibition of certain sales activities by public bodies. Municipalities, but not state-owned bodies, may also in certain circumstances be banned from selling on a market altogether. A fine may also be imposed by the court for infringement.
Section 3.27 does not clearly spell out what conduct is covered. It merely states that any conduct that distorts, by object or effect, the conditions for effective competition, or impedes the occurrence or development of such competition, may be prohibited by an injunction. One interpretation of the this section is that it covers any activity that constitutes an abuse, albeit that dominance would not have to be proven. However, it appears that the SCA has adopted a broader interpretation whereby acts that clearly would not constitute an abuse of a dominant position can infringe the ban on anti-competitive public sales. One example is a refusal to deal where there were several available alternatives.14 This was appealed to the District Court, which annulled the SCA’s decision, in part because the SCA had not proven any adverse effect on competition.15 The judgment is under appeal to the Market Court and it seems that the SCA has tried to clarify the alleged adverse effects on competition in its appeal.
The SCA has applied the part of the provision that allows it to ban a municipality from selling on a market more frequently. Four such cases are currently under appeal and all of these concern sales by municipally owned companies to parties outside of the municipality.16
Current practice indicates that the SCA may be willing to accept undertakings to remedy an infringement of the provision and it did indeed close one investigation following such undertakings.17 It should also be noted that although the majority of cases concern municipalities and companies owned by them, there is clearly also scope to attack state owned companies. Indeed, the SCA has investigated alleged infringements of this provision by one of the state gambling monopolies (Svenska Spel).18
There appear to be a number of complaints concerning anti-competitive public sales and as the SCA does not need to prove that a dominant position exists these cases are less cumbersome to investigate than traditional antitrust cases. Therefore, more of these cases could be expected. This would particularly be the case if the courts were to find in favour of the SCA’s current broad interpretation of the provision.
Notification in Sweden is mandatory in cases where the following turnover thresholds are met:
- the combined aggregate turnover in Sweden of all the companies concerned in the preceding financial year exceeds 1 billion kronor; and
- at least two of the companies concerned each had turnover exceeding 200 million kronor in Sweden during the preceding financial year.
In 2012, 36 notifications were submitted on the basis of the thresholds being met. If the first threshold is met but the second is not, the parties may submit a notification voluntarily. The SCA may also require a notification to be submitted if it believes that the concentration ought to be reviewed. The SCA appears to have an increased tendency to do so and has indeed requested notifications on several occasions in the past years. One example of this is Bonnier/Pocket Shop, where the SCA requested a notification and then cleared the merger without commitments in Phase II.19 In 2012, notifications were requested by the SCA in two cases: Bonnier/Pocket Shop and Assa Abloy’s acquisition of Prokey. It should be noted that the suspension obligation applies also when the SCA requests a notification, even if the suspension obviously negatively impact the parties to the transaction.
Although there is no formal requirement of convergence in relation to mergers, the Swedish merger control rules are to be applied in the same way as EU merger control rules, and judgments from the EU courts may be used to interpret the Swedish merger control rules.
The statutory review period in Phase I is 25 working days. If the parties submit commitments in Phase I, it may be prolonged by an additional 10 working days. However, the SCA often adopts decisions in Phase I well within the prescribed time limits. If the SCA decides to go to an in-depth review (Phase II), the review period is extended by three months. It is also possible to stay the proceedings in Phase II if parties agree to do so. If particular grounds apply, proceedings may be stayed even absent the parties’ agreement.
Recent case law
The SCA appears to have taken a tougher stance on mergers in recent years. One example is the decision in 2011 to block the proposed merger between Com Hem and Canal Digital.20 The SCA found that the merger would significantly impede competition for the ‘distribution of TV services to multi-family dwellings through collective agreements with property owners in Sweden’. The product market definition used is arguably too narrow as it excludes not only single-family properties, but also agreements with individual customers living in multi-family dwellings. More importantly, the competitive assessment does not take full account of the fact that there is no obligation on customers to conclude collective agreements. Had Com Hem, for example, raised prices or decreased the quality of the services, property owners could have decided not to conclude collective agreements and instead chosen individual agreements where competition is relatively strong.
However, in the Arla/Milko merger in 2011, the SCA approved a three-to-two merger between the largest and third-largest dairy manufacturers in Sweden because Milko was on the verge of bankruptcy, despite not all the conditions for a ‘failing-firm’ defence being fulfilled.21 In particular, it had not been shown that all of Milko’s assets would exit the market following bankruptcy. The merger was approved following commitments to divest production facilities and certain brands.
A notable trend has been the application by the SCA of the ‘upward pricing pressure test’ (UPP). This was used in Arla/Milko and in the Eniro/118800 merger, where the SCA moved to block a merger between two companies active in the telephone directory market. The parties aborted the merger before the case was heard by the Stockholm District Court.
The only material rules on state aid applicable in Sweden are contained in articles 106 to 109 of the TFEU; there are no purely national rules on state aid. There are currently several ways of bringing cases against alleged state aid infringements. That said, the procedural path is not clearly spelt out in any legislative framework. Regrettably, the chance to improve the situation was missed as a recent law that clarifies the state’s right to reclaim unlawful state aid omitted provisions on the right of third parties to have individual standing and provisions clarifying the right to damages, despite this being included in the initial proposal.22
Recent case law
One recent example of national proceedings relating to state aid is the Stokab case, where the appellate court found that there was indeed illegal state aid, thus overturning the lower court’s decision. Briefly, the case concerned the roll-out of broadband in multi-family dwellings in Stockholm. The aid was given through municipality-owned housing corporations and one issue was whether the money constituted state aid (ie, whether the municipality had sufficient control over the housing corporations). The appellate court found that there was sufficient control, especially as Swedish law requires the municipality to have control over its companies. The main issue, however, was whether or not the aid fulfilled the market economy investor principle (MEIP) criteria. The appellate court found that the criteria were not fulfilled as the municipality had not sufficiently demonstrated that there was a sound underlying business rationale for the broadband roll-out. Significantly, there were no business plans showing when a fair return on the 700 million kronor investment was expected.23
Another recent case was the attempt by a local golf club in Stockholm to sue for damages on the basis that it was not made privy to a tax subsidy for employers’ grants for health-care contributions for sporting activities. The lower court’s decision, upheld on appeal, clarified that the measure as such did not constitute state aid and that the golf club would in any event not have a cause for damages.24
The relevant enforcement authority is the Swedish Competition Authority (SCA). There are no sector specific regulators dealing with antitrust cases; the SCA is thus the only authority which applies the Act.
The SCA’s decision-making powers are limited to the extent that it may not impose fines itself. The SCA must file a statement of claim and it is the District Court of Stockholm (subject to appeal to the Market Court) that imposes the fine.
The SCA may, however, decide on a ‘fine order’ in cases where parties agree on substance. In short, this means that the parties accept the facts as stated by the SCA and that they also agree to the fine order. Therefore, a fine order is very similar to a settlement. Similarly to settlements, the main attraction for the parties involved is the avoidance of a full trial. A party’s acceptance is not irrevocable: it may appeal the fine order within one year of accepting it. So far, the SCA has rendered fine orders in three cases, all of which concerned bid rigging in public tenders.
The SCA may also issue a cease-and-desist order, subject to appeal to the Market Court. Under Swedish law, cease-and-desist orders must be more precisely worded than corresponding decisions taken by the European Commission. Under Swedish law, it is not sufficient merely to state that the infringement should cease; the SCA must clarify how such a cessation should be carried out. The above-mentioned charter coach cartel is an example of where the Market Court, on appeal, altered a cease-and-desist order.
Although competition law infringements are not criminalised as such, grave infringements of section 2.1 or article 101 of the TFEU may lead to the imposition of a so-called trading prohibition. The trading prohibition, as opposed to other sanctions under competition law, is imposed on a physical person. Only those who exercise control over an undertaking that participates in cartel activities may be made subject to a trading prohibition. The trading prohibition lasts for a specified period of time, normally between three and 10 years. During that time, the person affected by the trading prohibition may not own, or hold a managerial position in, any company. Moreover, he or she may not be employed by, or otherwise work for, the company that participated in the cartel. As with fines, trading prohibitions cannot be imposed by the SCA but solely by the District Court of Stockholm. The provision has so far never been applied to competition law infringements.
As mentioned above, should the SCA decide not to investigate a complaint, the complainant has a secondary right of action. Such actions are to be brought directly before the Market Court. As it is a subsidiary right of action, the Market Court will rule on the substantive issues and will not remand the case to the SCA. This right has successfully been employed on several occasions in recent years (eg, the above-mentioned Bring/Posten case).
Further, the Act expressly enables private parties to initiate claims for damages for competition law infringements. Notwithstanding the legal possibilities, so far only a few damages claims have been reported in Sweden. The best-known damages case hitherto must without doubt be Europe Investor Direct and Others v VPC. In 2008, the Stockholm District Court for the first time awarded damages to a claimant based on an antitrust liability claim (namely, refusal to deal).25 In 2011, the ruling was upheld on appeal though the level of damages was lowered by the appellate court (and leave to appeal was refused by the Supreme Court in May 2012).26
In May 2012, the Stockholm District Court handed down its ruling in a claim for damages brought by petroleum company Preem against a port operator in the city of Gävle.27 In its action, Preem claimed that it had been subject to price discrimination. However, the court found that Preem had failed to show that it had suffered a competitive disadvantage since it was not active on the same market as the companies that received better terms and conditions. Preem initially appealed the decision, but withdrew its appeal in February 2013. In addition to these cases, there are currently two significant damages claims being pursued against TeliaSonera in the wake of the Market Court’s judgment of April 2013, in which, as mentioned above, the Market Court at least in part agreed with the SCA’s claim that TeliaSonera had abused its dominant position between 2001 and 2003 by applying a margin-squeeze in the Swedish ADSL market.28 The cases are likely to be heard by the District Court in 2014.
In relation to state aid, the contact point in Sweden is the government. The SCA’s sole function within the field of state aid law is as enforcer of the rules on transparency.29
Finally, it should be noted that a specific overall feature of competition law enforcement in Sweden is that Swedish administrative law offers extensive rights to access documents. This right arguably goes further than corresponding rights in other jurisdictions and under EU law. As a general rule, all documents are accessible apart from those that contain business secrets. Consequently, generally only the particular sentences or pieces of information referring to business secrets will be redacted, and the rest of the document will be available to the public. A further distinction is that the right of access to documents generally applies to the period prior to the submission of the statement of objections and as a consequence before any decision.
Proposals for reform
In 2012, the Swedish government commissioned a former supreme court judge, Severin Blomstrand, to assess whether, and if so how, the competition law rules should be updated to become more effective. The report was presented to the government in April 2013. The following measures were proposed: adopt a stop-the-clock possibility in merger reviews; introduce a marker system in the Swedish leniency programme; and explicitly allow the SCA to analyse the digitally retrieved material it has collected in dawn raids at the SCA’s premises. None of them seem particularly controversial and they could enter into force in 2014.
- Swedish Competition Act, in Swedish Konkurrenslagen (SFS 2008:579), available in English: http://www.kkv.se/upload/Filer/ENG/Publications/The_Swedish_Competition_Act.pdf ↑
- An equivalent right of action exists with respect to the prohibition on anti-competitive public sales. Under the Act, an undertaking may make a claim or apply for an injunction at the Stockholm District Court if the SCA decides not to do so in a particular case. The SCA has a handful of enforcement cases pending against municipalities. In addition, there is currently one ongoing case where a party has made use of its right to a secondary right of action to seek an injunction (in this case, against a group of municipalities). ↑
- Lag (2008:580) om gruppundantag för konkurrensbegränsande avtal om viss taxisamverkan; not available in English. ↑
- KKVFS 2009:2. The guidelines are not available in English. ↑
- Commission Notice on Immunity from fines and reduction of fines in cartel cases, OJ 2006/C 298/11, and the ECN Model Leniency Programme: http://ec.europa.eu/competition/ecn/model_leniency_en.pdf. ↑
- Decision of the SCA of 1 December 2011 in case dnr 327/2010. ↑
- Decision of the SCA to instigate proceedings of 8 December 2010 in case 645/2010. ↑
- Judgment of the Stockholm District Court of 24 February 2012, case T-19974-10. ↑
- Decision of the SCA of 13 May 2011 in case dnr 709/2009. ↑
- Decision of the SCA of 3 May 2012 in case dnr 262/2011. ↑
- Judgment of the Stockholm City Court of December 2 2011 in case T31862-04 Konkurrensverket/TeliaSonera AB. ↑
- Judgment of the Court of Justice of the European Union of 17 February 2011 in case C-52/09 <>em>Konkurrensverket/TeliaSonera. ↑
- Judgment by the Market Court of 8 June 2011, MD 2011:14. ↑
- Decision of the SCA to instigate proceeding of 26 May 2011 in case 304/2010. ↑
- The District Court of Stockholm’s judgment of 30 January 2013 in case T 7924-11 Räddningstjänsten Dala-Mitt. ↑
- Decision of the SCA to instigate proceedings of 22 June 2011 in case 438/2011; decision of the SCA to instigate proceedings of 31 May 2011 in case 391/2011. ↑
- Decision of the SCA in case dnr 451/2010. ↑
- Decision of the SCA in case dnr 451/2010. ↑
- Decision of the SCA in case dnr 370/2012. ↑
- Decision of the SCA to instigate proceeding of 24 November 2011 in case dnr 758/2011. ↑
- Decision of the SCA of 24 October 2011 in case 445/2011. ↑
- Proposal referred to the Council on Legislation on February 7, 2013, the original proposals can be found in SOU 2011:69 Illegal State Aid. ↑
- Stockholm Administrative Court of Appeal’s judgment of 16 December 2009 in case 4514-07. ↑
- Judgment by the Svea Court of Appeal of 20 April 2012 in case T-9110-10 Huvudstadens Golf Service AB. ↑
- Judgment by the Stockhom District Court of on 20 November 2008 in case 32799-05. ↑
- Judgment by the Svea Court of Appeals on 8 November 2011 in case 10012-08. ↑
- Judgment by the Stockholm District Court on 31 May 2012 In case T 5995-09. ↑
- Stockholm District Court, case T 31862-04, Swedish Competition Authority v TeliaSonera AB. ↑
- Law (2005:590) on Transparency, implementing Commission Directive 2006/111/EC of 16 November 2006 on the transparency of financial relations between member states and public undertakings as well as on financial transparency within certain undertakings. ↑
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