What has the Council adopted today?
The General Affairs Council has today adopted a decision, as expected, to authorise the opening of the future partnership negotiations with the United Kingdom and the associated negotiating directives.
The negotiating directives adopted today are based on the draft recommendation put forward by the Commission on 3 February 2020. They fully respect existing European Council guidelines and conclusions, as well as the Political Declaration agreed between the EU and the United Kingdom in October 2019.
What did the Commission adopt previously?
The European Commission adopted on 3 February 2020 a recommendation to the Council to authorise it to open negotiations for a new partnership with the United Kingdom of Great Britain and Northern Ireland, in accordance with Articles 218(3) and (4) TFEU and Article 101 EAEC.
This recommendation was based on existing European Council guidelines and conclusions, as well as the Political Declaration agreed between the EU and the United Kingdom in October 2019. It included a comprehensive proposal for negotiating directives, defining the scope and terms of the future partnership that the European Union envisages with the United Kingdom.
What is the scope of these negotiating directives?
In line with the European Council guidelines of 23 March 2018 and the European Council conclusions of 13 December 2019, the directives cover all areas of interest for the negotiations, including trade and economic cooperation, law enforcement and judicial cooperation in criminal matters, foreign policy, security and defence, participation in Union programmes and other thematic areas of cooperation. A dedicated chapter on governance provides an outline for an overall governance framework covering all areas of economic and security cooperation.
Have you agreed with the United Kingdom yet about practical arrangements for the negotiations, such as language regime?
Practical issues, such as language regime and negotiation structure, will be agreed jointly between the EU and UK negotiators.
When will negotiations start?
Formal negotiations with the United Kingdom are set to begin the week of 2 March 2020.
Can you really negotiate everything by the end of the year?
The Commission intends to achieve as much as possible during the transition period. We are ready to work 24/7 to make the best out of the negotiations. It is possible to extend the transition period by 1 to 2 years. This decision must be taken jointly by the EU and the UK before 1 July.
Extending the transition period: if no decision is taken by July 2020, surely there is an alternative mechanism, if needs be?
If no decision has been taken by the Joint Committee before July 2020, there is no other legal basis for extending the transition beyond 2020.
Is there still a risk of a “no-deal” scenario at the end of the year?
As in every negotiation, the risk of not reaching an agreement is there. Regardless of whether a future partnership will be in place, all businesses need to prepare now for the end of the transition period, as the UK will no longer be in the Single Market or the Customs Union.
Will all issues in the negotiating directives be negotiated in parallel?
We will work on all topics in parallel. We will be particularly vigilant to progress in areas where the risk of disruption at the end of the transition period is particularly high, in case no agreement has been reached.
Why was this legal basis chosen for the negotiations? Does that mean that the agreement does not need to be approved by national parliaments?
Given the scope of the envisaged partnership, at this stage, the choice of Article 217 of TFEU as a legal basis is the most natural since it is the widest legal basis possible. It is also suitable in order to provide for an overarching governance framework, which is one of the EU’s objectives. Obviously, the legal basis can only be final once we know the content of the final agreement. What is important is to ensure that the future agreement can enter into force on 1 January 2021.
Will there be one agreement or several agreements?
The aim is to negotiate an ambitious and comprehensive partnership with the United Kingdom that can enter into force by the end of the transition period. The Commission’s intention is to negotiate that partnership as a package that comprises three main components:
-general arrangements (including provisions on basic values, essential principles and on governance);
– economic arrangements (including provisions on trade, level playing field guarantees and fisheries); and
– security arrangements (including provisions on law enforcement and judicial cooperation in criminal matters, as well as on foreign policy, security and defence).
Will the new partnership be an ‘association agreement’ and how will such an agreement be ratified?
‘Association agreement’ is the term used in Article 217 of the Treaty on the Functioning of the European Union for an agreement ‘establishing an association involving reciprocal rights and obligations, common action and special procedure’. Article 217 TFEU allows for the closest possible partnership with a country that is not an EU member. There are many different types of association agreement, but what they all have in common is their comprehensive nature and the fact that they establish a long-term institutional framework. An association agreement must be approved by unanimity in the Council and requires the consent of the European Parliament before it can enter into force. Whether the future partnership must be ratified by national parliaments depends on its final content and can only be determined at the end of the negotiations.
How will you ensure unity during these negotiations?
Just as with the Article 50 negotiations on the UK’s withdrawal from the EU, the Commission will conduct these negotiations in continuous coordination with the Council and its preparatory bodies. It will consult and report to the preparatory bodies of the Council in a timely manner, and will provide all the necessary information and documents relating to the negotiations. The Commission will also keep the European Parliament fully informed of the negotiations. For Common Foreign and Security Policy matters, the Commission will furthermore conduct negotiations in agreement with the High Representative of the Union for Foreign Affairs and Security Policy.
Will EU negotiating positions be made public?
Yes, the Commission’s aim will be to ensure full transparency. This is also why the Commission made its recommendation public.
What is the purpose of the High-Level Conference between the EU and the UK in June 2020?
The High-Level Conference in June, as foreseen by the Withdrawal Agreement, aims to take stock of the progress in negotiations. The Commission will also use the Conference to take stock of the state of implementation of the Withdrawal Agreement, in particular when it comes to citizens’ rights and the Protocol on Ireland and Northern Ireland.
Will the future agreement supersede the Protocol on Ireland and Northern Ireland?
Unlike earlier versions, the Protocol on Ireland and Northern Ireland agreed in October 2019 and which is a part of the Withdrawal Agreement is not a “backstop”. It was conceived as a stable and lasting solution. The Protocol will apply alongside any agreement on the future relationship. Nevertheless, it is clear that the terms of the future trading relationship between the EU and the United Kingdom – in terms of the shared ambition to have zero customs duties and quotas between the EU and the United Kingdom – will have some bearing on the practical application of the Protocol.
How to ensure effective implementation of any future agreement?
For the agreement to be correctly implemented and applied, there must be effective governance arrangements with credible enforcement and compliance mechanisms, as of 1 January 2021. Where the future partnership relies on EU law, there must be a role for the European Court of Justice. Only the European Court of Justice can interpret EU law.
What would happen if the United Kingdom were to breach the future agreement?
Many international treaties have rules on how disputes between the parties must be resolved. The future agreement should also have such rules. The typical process is that the parties must first attempt to resolve their differences amicably through a process of ‘consultations’. If those attempts are unsuccessful, the dispute may be brought before an arbitration panel for a binding ruling. If a party continues to infringe the agreement, the other party can take action to safeguard its interests and to urge compliance. In certain situations, there should be a possibility for a party to act quickly to avoid irreparable harm. An important part of the negotiations with the United Kingdom will be about making sure that the rules governing disputes between the parties are clear and effective and that breaches can be remedied quickly.
What will be the role of the European Court of Justice?
The European Court of Justice is the final arbiter when it comes to the interpretation and application of rules of Union law. The future agreement must respect this by making sure that no other court, tribunal or arbitration panel set up by the parties may encroach upon the role of the Court of Justice. The precise role of the European Court of Justice under the future agreement will depend on the content of the future relationship with the United Kingdom.
Will there be sanctions if the UK does not play by the rules?
We are looking at the best possible safeguards to allow for a quick reaction and protection of the EU’s interests. The precise details and scope of the overall governance framework will depend on the content of the future relationship.
How does the European Commission envisage the future economic partnership?
The envisaged partnership should be comprehensive including a free trade agreement, as well as wider sectoral cooperation.. It will be underpinned by robust commitments ensuring a level playing field for open and fair competition, as well as by effective management and supervision, dispute settlement and enforcement arrangements, including appropriate remedies.
What kind of customs cooperation do you foresee?
Within the framework of the EU’s Customs Code, the envisaged partnership should aim at optimising customs procedures, supervision and controls and facilitating legitimate trade by making use of available facilitative arrangements and technologies, while ensuring that customs authorities can take effective measures at the border. .
Customs authorities must be able to take effective measures at the border to enforce legitimate public policies (protection of health and safety of consumers, protecting businesses, for example regarding enforcement of intellectual property rights) and protect financial interests. Therefore, the customs cooperation that we envisage achieves, as is the case with our existing free trade agreements, limited facilitation and in any event cannot be described as going in the direction of frictionless trade. Only membership of the Single Market and the Customs Union can ensure such frictionless trade.
Will a free trade agreement (FTA) allow goods to be exchanged between the UK and the EU as they are today?
Trading under FTA terms, even a so-called “best in class” FTA, will be of a very different nature compared to the free movement of goods enabled by the EU’s Customs Union and Single Market. In an FTA context, rules of origin and customs formalities will apply; all imports will need to comply with the rules of the importing party and will be subject to regulatory checks and controls for safety, health and other public policy purposes.
That being said, the proposal we are ready to table, as the Political Declaration already announced, will be a very ambitious FTA: no tariffs and no quotas across all goods, including agricultural and fisheries products.
This privileged access is conditioned on the existence of robust provisions ensuring a level-playing field, guaranteeing competition between economic operators on both sides. In addition, the access conditions that the Union grants under the free trade area will be guided by the terms on access and quota shares in the fisheries agreement to be established by 1 July 2020. .
Without an FTA in place by the end of the transition period, tariffs and quotas will apply to all trade in goods between the EU and the UK. In this scenario, we must apply what is known as “MFN tariffs” to the UK. Indeed, under the WTO Most Favoured Nation (MFN) principle, benefits given to one trading partner need to be extended to all other WTO members, unless a preferential trade arrangement, such as an FTA, allows this. Therefore, without an FTA in place as of 1 January 2021, economic operators and consumers should not expect privileged treatment when dealing with the UK.
What does “level playing-field” mean?
The EU is ready to offer a high-ambition trade deal, with zero tariffs and zero quotas on all goods entering our single market of 450 million people. However, because of our high levels of economic inter-connectedness, the volume of trade and geographical proximity, the draft negotiating directives also make clear that this offer is conditional on robust level playing field safeguards to prevent unfair competitive advantages the UK could derive from regulatory divergence (via lowering of standards or a “race to the bottom”) or subsidisation of UK operators. In the Political Declaration, the EU and the UK already agreed that they would prevent distortions of trade and unfair competitive advantages. We must now agree on effective assurances to guarantee common high standards and corresponding high standards over time on social, environmental, tax, state aid and competition matters. Union standards in these areas will serve as a point of reference to establish these guarantees. Robust level playing field commitments will entail also the establishment of adequate mechanisms to ensure effective enforcement and monitoring, dispute settlement and the possibility to adopt appropriate remedies, including autonomous measures to react quickly to disruptions of the equal conditions of competition in relevant areas..
What if the UK will not commit to any level playing field guarantees?
We agreed in the Political Declaration that the scope and depth of the future relationship will depend on the level playing field commitments that the UK is willing to undertake. The EU will not agree on an FTA without solid level playing field guarantees and an agreement on fisheries. Our geographic proximity, volume of trade and economic interconnectedness are such that it is in our mutual interest to agree on fair competition standards between us, as well as on their effective enforcement. Given the current very close integration of British companies with the Single Market and the UK’s desire for a comprehensive free trade agreement, it is only fair that the EU requires commensurately strong level playing field guarantees. This will also be in the interest of British consumers and businesses. The EU is by far the greatest export market for UK businesses and most UK imports come from the EU.
Will sanitary and phytosanitary requirements (SPS) change?
There will be no changes to the Union’s food safety standards. Union law, including systematic controls, will fully apply to imported food, animals and plants without exceptions or equivalency. High-level SPS standards will be safeguarded. As in existing FTAs, relations will be built on and will go beyond existing multilateral instruments [World Trade Organization (WTO), Codex Alimentarius, International Plant Protection Convention (IPPO) and World Organisation for Animal Health (OIE)] recommendation and requirements. Co-operation should be ensured in combating antimicrobial resistance as well as protecting animal welfare and ensuring sustainable food systems.
Will the EU allow for mutual recognition of rules and standards?
By choosing to leave the Single Market, the UK has opted to have the status of a third country regarding EU law. The EU and UK will therefore form separate markets and distinct legal orders, after the end of the transition period. The future relationship will therefore result in a lower level of integration than is the case today. The future economic partnership on goods will seek to facilitate trade as far as possible but this cannot be expected to replicate the same frictionless conditions of trade that exist between EU Member States. Such conditions are based on adherence, by Member States, to a full ‘ecosystem’ of rules, including the Treaties, and their supervision and enforcement, including the jurisdictional system under the Court of Justice of the EU. Mutual recognition can only be granted between participants to that ecosystem.
What can be achieved on services in the context of an FTA?
We can aim at a level of liberalisation of trade in services beyond the baseline provided by our existing WTO GATS commitments, similarly to the approach in our most recent FTAs. As required under GATS rules, the FTA would need to cover most services sectors, such as telecommunication services or business services to name a few. But, as in any FTA negotiated by the EU, there will be exceptions. For example, the EU proposes to exclude audiovisual services from the scope of the Agreement.. It is also important to recall that, under its FTAs, the EU maintains its right to regulate its own markets and its full regulatory autonomy. We will be particularly attentive to include provisions that preserve the EU’s public servicesThis preservation of our right to regulate will be paramount in all sectors, and a good illustration is financial services. Indeed, in that area, the key instruments the EU and the UK will use in this area are their respective unilateral equivalence frameworks, as laid down in their legislation. The FTA will cover financial services, but it will not go beyond what the EU offers in its FTAs with other third countries. It will also contain the prudential carve-out.
Finally, it should be recalled that while free trade agreements’ provisions are important in the area of services, a number of other rules impact trade in services. Some of them imply unilateral decisions such as EU regimes on data protection and financial services regulation and supervision. The EU intends to assess the UK for adequacy on data protection and equivalence on financial services. That is what we have agreed in the Political Declaration. Decisions should be reciprocal. Services are also closely linked to the free movement of people (professionals such as lawyers, consultants, accountants etc.), which the UK explicitly intends to stop post-Brexit. Those elements should be taken into account too when assessing priorities for the coming negotiations.
Will audiovisual services and public services be covered?
The EU always excludes certain services (e.g. audiovisual, public services) from its FTAs and considers carefully any commitments made in the other sectors. The EU also needs to consider the Most Favoured Nation commitment it has taken that would extend the benefits of the agreement with the UK to other FTA partners such as Canada, Japan and Korea.
What about roaming?
The provisions on roaming-like-at-home will stop applying in respect of the UK. When traveling to the UK, the situation will be similar to that of travelling to Switzerland: roaming changes may apply. Telecoms operators have obligations to be transparent as to the tariffs they charge.
What do you foresee on digital trade?
The objective is to facilitate digital trade, such as e-commerce, while respecting consumer rights and personal data protection rights. This is something that the EU has been doing in its FTAs for long time.
Will financial services be covered by the FTA?
Yes, we usually cover financial services in EU FTAs. The standard approach is to have limited market access commitments, notably on cross-border supply of financial services. In addition, even where there is market access the EU will continue to apply its host state-rules to incoming providers. Finally, like in all FTAs we will have a prudential carve-out that allows to Union to adopt any measure for prudential reasons.
The EU’s equivalence regimes are the instruments that the EU will use to regulate interactions with the UK in the financial services area. The EU’s equivalence frameworks only provide for the possibility to give market access in a few cases. They do not cover all financial services. The granting (or not granting) of equivalence is a unilateral measure by the EU. Equivalence can be withdrawn at any time. Decisions should be reciprocal.
What are you proposing on geographical indications, and how does that differ from the Withdrawal Agreement?
All EU geographical indications registered on 31.12.2020 (the “stock”) will be protected in the United Kingdom as a result of the Withdrawal Agreement. However, beyond this, the future FTA should provide a framework to ensure the protection of newly registered geographical indications at the same level as that guaranteed by the Withdrawal Agreement.
What are you proposing on public procurement?
We aim at securing procurement opportunities on top of those guaranteed by the UK’s accession to the WTO Government Procurement Agreement (the UK is in the process of acceding to that agreement).
Mobility: will EU and UK citizens still be able to move freely?
The UK has decided to end the free movement of persons and has limited ambition for specific arrangements with the EU on the mobility of persons.
This does not mean that mobility will stop. Today, citizens move from one country to another to live, work, study and carry out research. However, after the end of the transition period, mobility to and from the UK will be different and will happen under different rules than before when free movement rules applied. What exactly those rules will be depends on the outcome of the negotiations but our objective is to ensure reciprocity and no discrimination between EU nationals.
How about short-term trips by EU citizens to the UK and by UK nationals to the EU?
After the end of the transition period, the EU will not require visas for short stays (less than 90 days in 180 days) for UK nationals independently of the purpose of the trip (except in case of paid work), so short-term tourists, students, journalists, trainees, etc. from the UK will be able to come visa free.
This arrangement is dependent on the UK also granting full visa reciprocity to the nationals of all EU Member States travelling to the UK.
Will there be different entry checks on UK nationals when entering the EU?
Yes, UK nationals will be treated as third-country nationals as of the end of the transition period. There is no legal alternative under the Schengen acquis. This means that the entry conditions for third-country nationals and the procedures applicable to the crossing of the EU external borders will also apply to UK nationals, as will the relevant provisions of the Union Customs Code and directives relating to VAT.
Concretely, this means that: UK nationals will no longer be able to use the designated lanes at Border Crossing Points (EU, EEA, CH); their passports will be subject to stamping upon entry and exit from the Schengen Area; they will be subject to checks including checks against databases upon entry and exit; they will be subject to the EU’s Entry/Exit-System (EES) and the European Travel Information and Authorisation System (ETIAS) when these systems will be deployed in the future.
The entry checks on UK nationals will include verification of the possession of a valid travel document for crossing the border; the duration of the stay; the purpose (e.g. tourism or work) and the conditions of the intended stay (e.g. accommodation, internal travels); the existence of sufficient means of subsistence (i.e. having sufficient means to pay for the intended stay and return travel).
How about the possibility of EU citizens to move to the UK and UK nationals to the EU for longer terms (longer than 90 days)?
After the end of the transition period, mobility to and from the UK will be different and will happen under different rules than before when EU free movement rules applied. What exactly those rules will be depends on the outcome of the negotiations.
Nevertheless, even in the absence of specific provisions, the default rules of the EU and the UK would cover the entry and stay for different purposes. On the EU side, national rules and the EU’s legal migration acquis for long stays sets out the conditions of entry and stay in the EU for categories such as students, researchers, some types of workers, family members, long-term residents, au pairs, volunteers etc. These rules apply in the same way to citizens of all third countries, including the UK when it becomes a third country. For stays of less than 90 days in a 180-day period, the Schengen acquis applies. On the UK side, its national migration regime would apply.
What do you foresee on mobility of citizens within the FTA?
As regards mobility, FTAs only deal with the entry and temporary stay of natural persons for business purposes in defined areas. However, host State rules continue to apply as regards conditions for entry and stay, access to labour market and working conditions.
What do you foresee on social security coordination?
In order to facilitate the future mobility of persons, appropriate social security coordination will also need to be agreed. The scope of social security coordination rules in the future relations with the UK should cover the possible mobility of UK and Union citizens in a situation where there will not be free movements of persons anymore. . The social security coordination should be based on non-discrimination between EU Member States and full reciprocity.
It is noted that one of the stated objectives of Brexit was to stop the free movement of citizens. This means that in any event, the situation on citizens’ mobility after 1 January 2021 will be very different compared to today.
Will smooth transport links still be ensured?
In the future relationship, the EU will aim to ensure a continued flow of goods and persons between the UK and the EU, but the UK, as a third country, does not have the same rights as a Member State.
The situation is very different depending on the mode of transport: Ensuring connectivity for air traffic and road haulage will require an agreement, e.g. on market access. Without an agreement, there is no fall-back to allow traffic to continue.
What kind of an air transport agreement do you foresee?
In terms of air transport, UK operators currently benefit from full market access in the EU: a UK airline can offer air services within the EU without restrictions. Without an EU-UK partnership in aviation, and in absence of unilateral contingency measures, no flight would take place between the UK and the EU as the WTO does not offer any fall-back for air services.
We are aiming for an aviation relationship that allows for continued connectivity and ensures a high level of aviation safety and security standards, air traffic management, and sector specific level playing field provisions to allow for open and fair competition, including appropriate and relevant consumer protection requirements and social standards.
What do you foresee on road transport?
In the area of road transport, we are aiming for a system of open market access allowing journeys between the UK and the EU, while preserving the integrity of the internal market for road haulage services. We also need to ensure sector specific level playing field provisions, in particular as regards the rules that affect our operators, our drivers and our vehicles.
Will you need an agreement on energy?
The negotiating directives foresee cooperation in the area of energy. An important pre-condition for cooperation in this area is to ensure we have robust level playing field requirements. In particular carbon pricing (Emission Trading System – ETS) and provisions on State aid are both a pre-condition for future cooperation on energy.
In the area of electricity and gas, there is no precedent for this type of arrangement.
As regards Euratom issues, the EU has experience regarding Nuclear Cooperation Agreements with other third countries.
What about climate change?
In the introductory paragraphs of the negotiating directives, five binding political clauses underpinning the all-encompassing relationships between the EU and third countries are highlighted, namely: the respect for and safeguarding of human rights, democracy and the rule of law; support for non-proliferation of weapons of mass destruction; the fight against terrorism; prosecution of those accused of the most serious crimes of concern to the international community; small arms and light weapons. The fight against climate change has been added as an essential element of the envisaged partnership.
Will the UK continue to participate in the ETS system?
In line with the Political Declaration, the negotiating directives foresee the possibility of a so-called linking agreement by which the EU and the UK could link their respective emission trading systems.
Will EU fishermen continue to have access to UK waters?
Access to each other’s waters will be negotiated as part of the provisions on fisheries, which should provide for continued reciprocal access, in line with the objectives set out in the March 2018 European Council Guidelines.
Will the EU impose tariffs on UK fisheries products?
The envisaged partnership should include, in its economic part, provisions on fisheries setting out a framework for the management of shared fish stocks, as well as the conditions on access to waters and resources. The intention is to have fully liberalised market access across all goods, i.e. no tariffs and no quotas, which will be guided by the agreement on fisheries.
What happens if there is no agreement on fisheries by July 2020?
The Political Declaration includes a joint commitment on best endeavours to reach an agreement on fisheries by 1 July 2020. The time to negotiate such an agreement will be very short (four months), but it is in our mutual interest to conclude the fisheries agreement in due time, so it can be implemented as of 1 January 2021 in view of ensuring sustainable fisheries management.
Union programmes: will the UK still get grants and subsidies from the EU? Will they contribute to the EU budget?
As set out in the Withdrawal Agreement, UK beneficiaries will continue to benefit from programmes under the Multi-annual framework for 2014-2020, even where this continues after the end of the transition period.
The UK will be treated as a third country for the purposes of the next Multiannual Financial Framework (MFF) 2021-2027. If the UK requests participation in some areas, the EU could consider participation in accordance with the MFF rules for third country participation.
What about Erasmus?
Activities under the current Erasmus+ (2014-2020) programme are covered by the Withdrawal Agreement, and will continue without interruption until their closure. For the future Erasmus programme, under the next Multiannual Financial Framework (2021-2027) it will depend on the possible participation of the UK in Union programmes.
Will the United Kingdom be able to continue to participate in EU regulatory agencies as a third country?
No. These agencies have been set up to support the EU and its Member States to develop and implement EU rules. A third country leaving these rules, and their supervision, can no longer participate in these agencies..
Will our data still be safe if transferred to the UK and processed there?
In view of the importance of data flows, the envisaged partnership should be underpinned by a high level of personal data protection. The adoption by the Union of adequacy decisions, if the applicable conditions are met, should be an enabling factor for cooperation and personal data flow, in particular in the area of law enforcement and judicial cooperation in criminal matters. The Commission endeavours to adopt such decisions by the end of 2020, if applicable conditions are met.
Would the UK still be able to use the European Arrest Warrant? How would criminals be extradited between the EU and the UK?
The European Arrest Warrant is an internal EU instrument, used exclusively among Member States. Therefore, it will no longer be used with the UK.
The draft negotiating directives propose new and effective arrangements between the United Kingdom and EU Member States to render criminals swiftly to justice. This would be an ambitious scheme, based on streamlined procedures and strict deadlines, subject to judicial control. It would be conditional upon robust safeguards on fundamental rights and the role of Court of Justice.
At the same time, it will offer flexibility to each Member State and to the United Kingdom to decide how far they wish to go in common relations. It will help, for example, to address constitutional constraints related to extradition of own nationals in some Member States and allow for the possibility to ask for additional guarantees in particular cases.
Why do you have reference to “UK continuous commitment” to the European Convention on Human Rights? Why would cooperation cease if the UK leaves the Convention?
The draft negotiating directives propose close relations with the UK on law enforcement and judicial cooperation in criminal matters. It would cover, amongst other things, ambitious extradition or exchange of sensitive information that may impact human lives or rights (e.g. deprivation of liberty). Such relations require a high degree of confidence that the human rights concerned will be upheld. We need a common understanding on how we protect those rights. Within the Union we have the Charter of Fundamental Rights. This is a part of our Treaties. With regard to the UK, the negotiating directives propose a strong commitment to respect the European Convention on Human Rights (ECHR), a common pan-European instrument applied for over 70 years by the United Kingdom and other countries across Europe. Commitment to ECHR is also set out in the Good Friday (Belfast) Agreement.
Will Passenger Name Records (PNR) continue to be exchanged to prevent, detect and investigate terrorism and other forms of serious crime?
The negotiating directives foresee that arrangements should be established for timely, effective, efficient and reciprocal exchanges of Passenger Name Records (PNR). This means that arrangements need to be made for two situations: first, for exchanges between EU27 Member States’ and UK Passenger Information Units and, second, for transfers of PNR data by air carriers to the UK authorities for flights between the United Kingdom and EU27 Member States. There are examples of cooperation with third countries on PNR transfers: the EU has PNR agreements with the USA and Australia; there is a draft negotiated text with Canada and a mandate for negotiations with Japan. An essential precondition for any such arrangements is that the UK applies data protection standards essentially equivalent to those set out in the EU’s standards, i.e. the GDPR and Law Enforcement Directives, and complies with specific additional data protection standards stemming from the CJEU opinion on EU-Canada PNR agreement (opinion 1/15).
Will DNA, fingerprints and vehicle registration data be exchanged between the UK and EU for law enforcement purposes? (Prüm)
The negotiating directives provide that arrangements should be established for timely, effective, efficient and reciprocal exchanges of data on DNA, fingerprints and vehicle registration (so- called ‘Prüm data’). However, there will be no direct access to such sensitive personal data but only through a decentralised system based on a “hit/no hit” model. After a “hit”, i.e. a confirmation that something is available, this needs to be followed up by a request to receive this data from the Member State concerned.
The EU currently has concluded Prüm-agreements with Schengen Associated Countries (Iceland, Norway, Switzerland and Liechtenstein), but the model is open to third countries outside Schengen.
Essential preconditions for any such arrangements are that the UK applies data protection standards essentially equivalent to those set out in the EU’s Law Enforcement Directive standards, and provides reciprocal access to EU Member States of data available at UK national level in the same way as EU27 Member States do.
Will the UK keep access to the Schengen Information System (SIS)?
Non-Schengen third countries do not have access to SIS. SIS is a measure that contributes to security within the EU, in which there are no internal borders. It is intrinsically linked to the free movement of persons. The Court of Justice has consistently defended the coherence of the Schengen acquis.
We need to set up new effective ways of data sharing on wanted and missing persons and objects, while taking into account the UK’s future status. This would be achieved through alternatives for simplified, efficient and effective exchanges of existing information and intelligence between the United Kingdom and Member States law enforcement authorities, in so far as is technically and legally possible, and considered necessary and in the Union’s interest..
What would the UK role in Europol be?
The negotiating directives provide for cooperation between Europol and the United Kingdom law enforcement authorities. This will be done in line with the rules for third countries established in EU legislation.
In practice, this means that the UK would be able to:
-share any relevant data, initiate new cases, use common secure communication channel – as it is the case now;
-participate in all Europol analysis projects where Europol, Member States and other partners cooperate on ongoing live-investigations, if Member States participating in such analysis projects agree; and
-take part in common operations, get analytical support from Europol, keep its Liaison Officers at Europol and be informed about relevant data concerning the UK. However, it would not get access to the Europol Information System or have any role in governance of the EU agency.
The negotiating directives propose an ambitious law enforcement and judicial cooperation in criminal matters, guaranteeing at the same time security and fundamental rights of our citizens. Cooperation will, however, be different from what we have today. This is a logical consequence of the UK’s decision to withdraw from the EU. The UK will leave the common rules-based system underpinned by shared principles, common obligations and enforcement.
Will the EU and the UK continue to cooperate on sanctions?
EU sanctions will continue to be driven solely by EU interests. However, cooperation is important to maximise the impact of our sanctions. We should cooperate with the UK the same way we cooperate with other like-minded third countries.
Will UK participation in EU missions and operations have to stop?
The UK will be invited to participate by the Union in its missions and operations on a case-by-case basis (no standing invitation), following the existing rules and preserving the independence of the Union’s decision-making process.
Will you continue to cooperate in third countries on development cooperation?
The EU will maintain its autonomy and strategic programming of development priorities. The EU and the UK will continue to cooperate on the ground to maximise the impact of development cooperation. The UK will be able to make use of existing mechanisms for third countries’ participation, including with regard to any proposals for development cooperation instruments.
Explainer: New EU strategy on adaptation to climate change
1. What is the objective of the new EU Adaptation Strategy?
The Strategy outlines a long-term vision for the EU to become a climate-resilient society, fully adapted to the unavoidable impacts of climate change by 2050. Complementing the EU’s ambitious goal to become climate neutral by mid-century, this strategy aims to reinforce the adaptive capacity of the EU and the world and minimise vulnerability to the impacts of climate change, in line with the Paris Agreement and the proposal for the European Climate Law. The new Strategy seeks to step up action across the economy and society in synergy with other Green Deal policies such as biodiversity protection and sustainable agriculture. This will be done by making adaptation smarter, swifter and more systemic, as well as stepping up international action on adaptation. This means improving our knowledge of climate impacts and adaptation solutions; stepping up adaptation planning and climate risk assessments; accelerating adaptation action; and helping to strengthen climate resilience globally. This strategy sets out a whole-economy approach, with particular consideration for those among us who are most vulnerable to guarantee that resilience is achieved in a just and fair way.
2. Why do we need a new EU Adaptation Strategy now?
Halting all greenhouse gas emissions today would still not prevent the climate change impacts that are already occurring. The severe effects of the COVID-19 pandemic on our health and socio-economic wellbeing are a stark warning of the dangers of insufficient preparation. The frequency and severity of climate and weather extremes is increasing. They range from unprecedented forest fires and heatwaves to devastating droughts; and from hurricanes ravaging EU outermost regions to forests decimated by unprecedented bark beetle outbreaks in Central and Eastern Europe. Water shortages in the EU have affected economic activities as diverse as agriculture, aquaculture, tourism, power plant cooling, and cargo shipping on rivers. In the EU, economic losses from extreme weather already average over €12 billion per year.
While the 2013 EU Adaptation Strategy was positively evaluated in 2018, there is a need to deepen and to expand adaptation actions, e.g. to make data more uniform and accessible, to bridge the climate protection gap – the share of non-insured economic losses – and to scale up finance for climate adaptation in the EU and globally. The EU’s adaptive capacity needs to be reinforced in line with the Paris Agreement and the proposed European Climate Law. The strategy comes at an important moment, ahead of the COP26 in Glasgow, where adaptation to climate change will play a key role.
3. What actions are planned in the EU as part of the strategy?
The Strategy pursues three objectives and proposes a range of actions in order to meet them:
- To make adaptation smarter – improving knowledge and availability of data, while managing the inherent uncertainty brought upon us by climate change; securing more and better data on climate-related risk and losses, and making Climate-ADAPT the authoritative European platform for adaptation knowledge.
- To make adaptation more systemic – supporting policy development at all levels of governance, society and the economy and in all sectors by improving adaptation strategies and plans; integrating climate resilience in macro-fiscal policy, and promoting nature-based solutions for adaptation.
- To speed up adaptation across the board – by accelerating the development and rollout of adaptation solutions; reducing climate-related risk; closing the climate protection gap , and ensuring the availability and sustainability of fresh water.
At the same time, the Commission will continue to provide guidelines, technical capacity and funding opportunities to help Member States, regions, and local administrations to develop and implement comprehensive adaptation strategies and actions. The Commission will also continue to mainstream adaptation by integrating climate change considerations into EU policies and programmes to make them climate resilient.
4. How does the Strategy integrate international action into its framework?
Our climate change adaptation ambition must match our global leadership in climate change mitigation. The Paris Agreement established the global goal on adaptation and highlighted adaptation as a key contributor to sustainable development. Adaptation is a crosscutting element in the EU and Member States’ external action, spanning development cooperation, migration, trade, agriculture and security. The EU already has a history of cooperating with other countries on climate adaptation at all levels, but the strategy brings this into a coherent framework around three actions:
- increasing support for international climate resilience and preparedness, for example in support of the development and implementation of Nationally Determined Contributions (under the Paris Agreement) in partner countries;
- scaling up international finance to build climate resilience, for example through the EU instruments for external action and leveraging private sector investments;
- strengthening global engagement and exchanges, learning from our international partners who have long been on the frontlines of climate change and have valuable experience that can help Europe become more climate resilient and sharing information for example from the COPERNICUS programme.
The EU and its Member States increased their overall climate finance support to third countries by 7.4% in 2019, amounting to €21.9 billion, 52% of which was spent on helping our partners adapt to climate change. In order to close the climate change adaptation financing gap, the Commission will aim to increase resources and mobilise larger scale adaptation finance, including through innovative mechanisms such as the European Fund for Sustainable Development Plus, as well as making resources available through bilateral channels and through the Member States.
5. Where can I find more information on adaptation in Europe?
The adaptation strategy aims to make Climate-ADAPT the authoritative European platform for adaptation knowledge, linking it up with other relevant knowledge portals and sources and making it more accessible for citizens, local governments and other stakeholders. Already today, Climate-ADAPT provides access to reliable data on the likely impacts of climate change, their socio-economic aspects, and the costs and benefits of adaptation options. Its continued development will give decision-makers vital support, and will help policy-makers at EU, national, regional and local levels to develop informed climate change adaptation measures and policies.
Climate-ADAPT will also host the new European Climate and Health Observatory. This Observatory will boost our awareness and understanding of the growing health risks, which climate change will entail, such as heat stress, food and water safety and security threats, or the emergence and spread of infectious diseases. It will help us to better anticipate and minimise these risks, and to improve our individual and collective preparedness.
6. What will Member States need to do under the new Strategy and how will progress be measured?
Adapting to climate change is a process. Discussions on standardised indicators that accurately capture progress are ongoing at EU and international level. The strategy aims to enlarge and make more accessible a toolbox that adaptation actors can use in their work and adapt to their individual needs, be they national, regional or local administrations, SMEs or individual citizens. To help informed decisions, the strategy promotes knowledge sharing and data availability. Adaptation reporting requirements for Member States are already set out in dedicated legislative instruments, such as the Energy Union Governance Regulations. The European Climate Law will, once adopted, also set out obligations for the EU and its Member States in this respect.
7. What EU-level resources are available for adaptation?
Financial support for adaptation is made available through the European Structural and Investment Funds, the Common Agricultural Policy, the LIFE Programme, and the Recovery and Resilience Facility. The proposed Horizon Europe Mission on Adaptation to Climate Change will also leverage significant resources in the effort to make Europe climate resilient. The Commission will support the local uptake of data, digital and smart solutions related to climate adaptation. To help local authorities move from planning to action, the EU will pilot a policy support facility to assist local and regional authorities under the EU Covenant of Mayors.
Strong EU trade enforcement rules enter into force
Robust new trade enforcement rules have entered into force that will further strengthen the EU’s toolbox in defending its interests. With the update of the EU’s Trade Enforcement Regulation, the EU is able to act in a broader range of circumstances.
The new rules upgrade the EU’s enforcement by introducing the following changes:
- empowering the EU to act to protect its trade interests in the World Trade Organization (WTO) and under bilateral agreements when a trade dispute is blocked despite the EU’s good faith effort to follow dispute settlement procedures (the regulation previously only allowed action after the completion of dispute settlement procedures); and
- expanding the scope of the regulation and of possible trade policy countermeasures to services and certain trade-related aspects of intellectual property rights (IPR) (the regulation previously only permitted countermeasures in goods).
Executive Vice-President and Commissioner for Trade, Valdis Dombrovskis, said: “The European Union must be able to defend itself against unfair trading practices. These new rules will help protect us from those trying to take advantage of our openness. We continue to work towards our first preference, which is a reformed and well-functioning multilateral rulebook with an effective Dispute Settlement System at its core. But we cannot afford to stand defenseless in the meantime. These measures allow us to respond resolutely and assertively.”
In line with the Political Guidelines of Commission President Ursula von der Leyen, the Commission is further reinforcing the Union’s tools to focus on compliance and enforcement of the EU’s trade agreements.
Ensuring the respect of the commitments agreed with other trade partners is a key priority of this Commission. The EU is therefore increasing the focus on enforcing its partners’ commitments in multilateral, regional and bilateral trade agreements. In so doing the Union will rely on a suite of instruments.
The proposal to amend the existing Enforcement Regulation came as a reaction to the blockage of the operations of the WTO Appellate Body. The current regulation – a basis under EU law for adopting trade countermeasures – requires that a dispute goes all the way through the WTO procedures, including the appeal stage, before the Union can react. The lack of a functioning WTO Appellate Body allows WTO Members to avoid their obligations and escape a binding ruling by simply appealing a panel report.
The revised Regulation enables the EU to react even if the WTO has not delivered a final ruling because the other WTO member blocks the dispute procedure by appealing to the non-functioning Appellate Body and by not agreeing to an alternative arbitration under WTO Dispute Settlement Agreement.
This new mechanism also applies to the dispute settlement in relation to regional or bilateral trade agreements to which the EU is party if a similar blockage arises. The EU must be able to respond resolutely in case trade partners hinder effective dispute settlement resolution, for instance, by blocking the composition of panels.
As part of the agreement, the Commission committed to developing the EU’s anti-coercion mechanism swiftly. As announced in the Letter of Intent of the President of the European Commission to the President of the European Parliament and President in office of the Council of 16 September 2020 the Commission shall adopt the proposal on the anti-coercion mechanism no later than the end of 2021. The anti-coercion mechanism is also included in the European Commission’s 2021 Work Programme.
Additional efforts on implementation and enforcement
In addition to upgrading the Enforcement Regulation and to proposing an anti-coercion mechanism, several other steps have been taken since the start of this Commission to strengthen and target EU implementation and enforcement efforts. This includes:
- the appointment of a Chief Trade Enforcement Officer;
- the creation of a new Directorate in DG Trade for enforcement, market access and SMEs; and
- the establishment under Access2Markets of a single entry point for complaints from EU stakeholders and businesses on trade barriers on foreign markets and violations of sustainable trade commitments in EU trade agreements.
Explainer: The Recovery and Resilience Facility
What are the main elements of the agreement on the Recovery and Resilience Facility regulation (RRF)?
The political agreement reached by co-legislators in December and approved by the European Parliament structures the scope of the RRF around six pillars: green transition; digital transformation; economic cohesion, productivity and competitiveness; social and territorial cohesion; health, economic, social and institutional resilience; policies for the next generation.
The national recovery and resilience plans should devote at least 37% of total expenditure to investments and reforms that support climate objectives. Furthermore, all investments and reforms must respect the “do no significant harm” principle, ensuring that they do not significantly harm the environment.
A minimum of 20% of expenditure should support the digital transition.
The recovery and resilience plans are also expected to contribute to effectively addressing the relevant challenges identified in country-specific recommendations under the European Semester.
The European Parliament will have a strong role in the RRF’s governance, with regular structured dialogues enabling it to invite the Commission to discuss the implementation of the RRF.
Pre-financing of 13% of the total amount allocated to each Member State will be made available as pre-financing after the approval of the respective recovery and resilience plans.
A scoreboard will be established and made publicly available to provide information on progress in the implementation of the RRF and national plans.
Member States will need to put in place strong measures to protect the financial interests of the Union, especially to prevent fraud, corruption and conflicts of interest.
What are the next steps? When will the RRF come into force?
Following the European Parliament’s approval, the Council now also needs to formally approve the political agreement reached in December 2020. This is scheduled to happen before the 16 February ECOFIN meeting. The RRF regulation will then be published in the Official Journal, allowing it to enter into force on the day after publication.
The Commission expects all the necessary formal steps to be concluded for the RRF to enter into force in the second half of February.
What are recovery and resilience plans?
Member States prepare recovery and resilience plans that set out a coherent package of reforms and investment initiatives to be implemented up to 2026 that will be supported by the RRF. These plans will be assessed by the Commission and approved by the Council.
When will Member States present their Recovery and Resilience Plans?
The Commission is currently engaging in intensive dialogue with all Member States on the preparation of their recovery and resilience plans.
Member States have been able to present their draft recovery and resilience plans to the Commission since 15 October 2020. They will have the opportunity to revise and finalise their plans following the initial presentation of the drafts.
They will be able to submit the final versions of their recovery and resilience plans once RRF is legally in force. The plans should be presented by 30 April, as a rule.
How will the Commission assess the recovery and resilience plans?
The Commission will assess the recovery and resilience plans based on eleven transparent criteria set out in the Regulation itself. The assessments will notably consider whether the investments and reforms set out in the plans:
- represent a balanced response to the economic and social situation of the Member State, contributing appropriately to all six RRF pillars;
- contribute to effectively addressing the relevant country-specific recommendations;
- devote at least 37% of total expenditure on investments and reforms that support climate objectives;
- devote at least 20% of total expenditure on the digital transition;
- contribute to strengthening the growth potential, job creation and economic, institutional and social resilience of the Member State;
- do not significantly harm the environment.
What is the timeline for the assessment of recovery and resilience plans?
The Commission will complete its assessment of recovery and resilience plans within two months of receiving them.
The Council will have up to four weeks to consider the Commission’s assessment and adopt an implementing decision by qualified majority.
What technical guidance has the Commission provided to Member States to help prepare their national recovery and resilience plans?
The Commission provided Member States with clear guidance to support them in the preparation of the recovery and resilience plans in September 2020. It updated this guidance in January 2021 to assist Member States in preparing plans in line with the political agreement of the co-legislators on the regulation. This update maintains the key aspects of the previous guidance. It reflects that the scope of the RRF is now structured around six pillars, as well as the fact that Member States should explain how the plans contribute to equality and the principles of the European Pillar of Social Rights. Plans should also include a summary of the consultation process at national level as well as a presentation of the controls and audit system put in place to ensure that the financial interests of the Union are protected. The guidance also asks Member States to detail an outline of their communication plans in order to make sure that EU support is visible to all Europeans who benefit from it.
The Commission has also published a standard template, which Member States are encouraged to use for their plans.
The Commission will provide Member States with guidance on the application of the ‘do no significant harm’ principle by mid-February.
How much funding will be provided under the Recovery and Resilience Facility in total?
The Recovery and Resilience Facility will provide up to €672.5 billion to support investments and reforms (in 2018 prices). This breaks down into €312.5 billion in grants and €360 billion in loans.
How will the allocation of grants to Member States be determined?
For 70% of the total of €312.5 billion available in grants, the allocation key will take into account
- the Member State’s population
- the inverse of its GDP per capita
- its average unemployment rate over the past 5 years (2015-2019) compared to the EU average.
For the remaining 30%, instead of the unemployment rate, the observed loss in real GDP over 2020 and the observed cumulative loss in real GDP over the period 2020-2021 will be considered. While Annex I of the Regulation provides an indicative amount for the 30% in current prices on the basis of the Autumn forecast, this will only be finalised when Eurostat presents final data in June 2022. The amounts in current prices are available here.
Member States can also request a loan worth up to 6.8% of their 2019 GNI as part of the submission of their recovery and resilience plan.
When will Member States begin to receive the first disbursements under the Recovery and Resilience Facility?
The 13% pre-financing payment will be made after the approval of the national recovery and resilience plan and the adoption of the legal commitment by the Commission. The Own Resources Decision will also have to be ratified by all Member States by that time in order for the Commission to be able to borrow on financial markets. This means that the first payments could be made starting from mid-2021, subject to all necessary legal acts being in place.
How will disbursements made under the Recovery and Resilience Facility be linked to progress with the implementation of investments and reforms?
Under the RRF, payments will be linked to performance. The Commission will authorise disbursements based on the satisfactory fulfilment of a group of milestones and targets reflecting progress on several reforms and investments of the plan. Milestones and targets should be clear, realistic, well defined, verifiable, and directly determined or otherwise influenced by public policies. Since disbursements can take place a maximum of twice a year, there cannot be more than two groups of milestones and targets per year.
Upon completion of the relevant agreed milestones and targets indicated in its recovery and resilience plan, the Member State will present a request to the Commission for a disbursement of financial support. The Commission will prepare an assessment within two months and ask the opinion of the Economic and Financial Committee on the satisfactory fulfilment of the relevant milestones and targets. In exceptional circumstances where one or more Member State considers that there are serious deviations from the satisfactory fulfilment of the relevant milestones and targets of another Member State, they may request that the President of the European Council refers the matter to the next European Council.
The Commission will adopt the decision on disbursement under the “examination procedure” of comitology.
If the Member State has not satisfactorily implemented the milestones and targets, the Commission will not pay all or part of the financial contribution to that Member State.
How will the Recovery and Resilience Facility support the green transition?
The Recovery and Resilience Facility Regulation establishes a climate target of 37% at the level of the individual national recovery and resilience plans. Each Member State will be responsible for presenting evidence on the overall share of climate-related expenditure in its plan based on a binding climate tracking methodology. When assessing the plan, the Commission will also scrutinise whether the climate target is reached. A plan that does not reach the target will not be accepted.
Each measure proposed in a recovery and resilience plan will also have to respect the “do no significant harm” principle. Specifically, there are six environmental objectives to which no significant harm should be done: (i) climate change mitigation, (ii) climate change adaptation, (iii) water and marine resources, (iv) the circular economy, (v) pollution prevention and control, and (vi) biodiversity and ecosystems. This obligation applies to all reforms and investments, and is not limited to green measures. The Commission will provide technical guidance to Member States giving further support on the application of this principle.
In addition, the Commission encourages Member States to propose flagship investment and reform initiatives that would have an added value for the EU as a whole. These are aimed at, for example, accelerating the development and use of renewables.
How will the Recovery and Resilience Facility support the digital transition?
Member States should ensure a high level of ambition when defining reforms and investments enabling the digital transition as part of their recovery and resilience plans. The Regulation requires that each recovery and resilience plan include a minimum level of 20% of expenditure related to digital. This includes, for instance, investing in the deployment of 5G and Gigabit connectivity, developing digital skills through reforms of education systems and increasing the availability and efficiency of public services using new digital tools.
What will be the role of the European Parliament?
The European Parliament will play a key role in the implementation of the RRF, in full respect of the EU institutional architecture. A ‘recovery and resilience dialogue’ is established, allowing the Parliament to invite the Commission up to every two months to discuss matters concerning the implementation of the RRF. The Commission is required to take into account the views arising from this dialogue. The Recovery and Resilience Scoreboard – to be finalised in December 2021 – will serve as a basis for the recovery and resilience dialogue.
The Commission should transmit information simultaneously to the European Parliament and the Council on the Recovery and Resilience Plans officially submitted by the Member States, and the proposals for Council implementing decisions. The Parliament will also receive an overview of the Commission’s preliminary findings on the fulfilment of milestones and targets related to payment requests and disbursement decisions.
What is the scoreboard? What indicators will be included in it?
A dedicated Recovery and Resilience Facility scoreboard will be established by means of delegated act. It will display the progress of the implementation of recovery and resilience plans in each of the six pillars of the RRF. This scoreboard should be operational by December 2021 and should be updated by the Commission on a biannual basis.
How will the EU’s financial interests be protected?
The Recovery and Resilience Facility requires a control framework that is tailored and proportionate to its unique nature. Member States’ national control systems will serve as the main instrument for safeguarding the financial interests of the Union.
Member States will have to ensure compliance with Union and national laws, including the effective prevention, detection and correction of conflict of interests, corruption and fraud, and avoidance of double funding. They are required to explain the relevant arrangements in their recovery and resilience plans, and the Commission will assess whether they provide sufficient assurance. For instance, Member States need to collect data on final recipients of funds and make this available upon request.
For each payment request, Member States will provide a ‘management declaration’ that the funds were used for their intended purpose, that information provided is correct, and that the control systems are in place and funds were used in accordance with applicable rules. In addition, the Commission will implement its own risk-based control strategy.
OLAF, the Court of Auditors, the European Public Prosecutors Office and the Commission itself may access relevant data and investigate the use of funds if necessary.
How will the Recovery and Resilience Facility be integrated into the European Semester?
The European Semester and the Recovery and Resilience Facility are closely linked. The assessment of the recovery and resilience plans will be checked against the country-specific recommendations. Given that the deadlines within the European Semester and the Facility will overlap, it is necessary to temporarily adapt the Semester.
Member States are encouraged to submit their National Reform Programmes and their recovery and resilience plans in a single integrated document. This document will provide an overview of the reforms and investments that the Member State will undertake in the coming years, in line with the objectives of the RRF.
The Commission will accompany the proposals for the Council implementing decisions with analytical documents assessing the substance of the recovery and resilience plans. These documents will replace the European Semester country reports in 2021 for those Member States submitting plans in 2021.
Given the comprehensive and forward-looking policy nature of the recovery and resilience plans, there will be no need for the Commission to propose country-specific recommendations in 2021.
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