Court of Justice of the European Communities (including Court of First Instance Decisions)

Provisional text

JUDGMENT OF THE COURT (Tenth Chamber)

30 March 2023 (*)

(Reference for a preliminary ruling – Judicial cooperation in civil matters – Measures relating to the law on succession – Regulation (EU) No 650/2012 – Article 13 – Declaration concerning the waiver of a succession made by an heir before the court of the Member State of his or her habitual residence – Subsequent registration of that declaration, at the request of another heir, in the register of another Member State)

In Case C‑651/21,

REQUEST for a preliminary ruling under Article 267 TFEU from the Sofiyski rayonen sad (District Court, Sofia, Bulgaria), made by decision of 25 October 2021, received at the Court on the same date, in the proceedings brought by

M. Ya. M.

THE COURT (Tenth Chamber),

composed of M. Ilešič (Rapporteur), acting as President of the Chamber, I. Jarukaitis and Z. Csehi, Judges,

Advocate General: M. Szpunar,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

–        the European Commission, by W. Wils and I. Zaloguin, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 10 November 2022,

gives the following

Judgment

1        This request for a preliminary ruling concerns the interpretation of Article 13 of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession (OJ 2012 L 201, p. 107).

2        The request has been made in proceedings brought by M. Ya. M., as an heir, regarding an application to register a declaration concerning the waiver of a succession, made by another heir before a court of the Member State of that heir’s habitual residence, in the register of another Member State.

 Legal context

 European Union law

3        Recitals 7, 23, 32 and 67 of Regulation No 650/2012 state:

‘(7)      The proper functioning of the internal market should be facilitated by removing the obstacles to the free movement of persons who currently face difficulties in asserting their rights in the context of a succession having cross-border implications. In the European area of justice, citizens must be able to organise their succession in advance. The rights of heirs and legatees, of other persons close to the deceased and of creditors of the succession must be effectively guaranteed.

…

(23)      In view of the increasing mobility of citizens and in order to ensure the proper administration of justice within the [European] Union and to ensure that a genuine connecting factor exists between the succession and the Member State in which jurisdiction is exercised, this Regulation should provide that the general connecting factor for the purposes of determining both jurisdiction and the applicable law should be the habitual residence of the deceased at the time of death. …

…

(32)      In order to simplify the lives of heirs and legatees habitually resident in a Member State other than that in which the succession is being or will be dealt with, this Regulation should allow any person entitled under the law applicable to the succession to make declarations concerning the acceptance or waiver of the succession, of a legacy or of a reserved share, or concerning the limitation of his liability for the debts under the succession, to make such declarations in the form provided for by the law of the Member State of his habitual residence before the courts of that Member State. This should not preclude such declarations being made before other authorities in that Member State which are competent to receive declarations under national law. Persons choosing to avail themselves of the possibility to make declarations in the Member State of their habitual residence should themselves inform the court or authority which is or will be dealing with the succession of the existence of such declarations within any time limit set by the law applicable to the succession.

…

(67)      In order for a succession with cross-border implications within the [European] Union to be settled speedily, smoothly and efficiently, the heirs, legatees, executors of the will or administrators of the estate should be able to demonstrate easily their status and/or rights and powers in another Member State, for instance in a Member State in which succession property is located. …’

4        Chapter II of that regulation, entitled ‘Jurisdiction’, contains, inter alia, Articles 4 and 13 thereof.

5        Article 4 of that regulation, entitled ‘General jurisdiction’, provides:

‘The courts of the Member State in which the deceased had his habitual residence at the time of death shall have jurisdiction to rule on the succession as a whole.’

6        Article 13 of that regulation, entitled ‘Acceptance or waiver of the succession, of a legacy or of a reserved share’, states:

‘In addition to the court having jurisdiction to rule on the succession pursuant to this Regulation, the courts of the Member State of the habitual residence of any person who, under the law applicable to the succession, may make, before a court, a declaration concerning the acceptance or waiver of the succession, of a legacy or of a reserved share, or a declaration designed to limit the liability of the person concerned in respect of the liabilities under the succession, shall have jurisdiction to receive such declarations where, under the law of that Member State, such declarations may be made before a court.’

7        Chapter III of Regulation No 650/2012, entitled ‘Applicable law’, includes, inter alia, Articles 21 and 22 thereof.

8        Article 21 of that regulation, entitled ‘General rule’, states, in paragraph 1 thereof:

‘Unless otherwise provided for in this Regulation, the law applicable to the succession as a whole shall be the law of the State in which the deceased had his habitual residence at the time of death.’

9        Article 22 of that regulation, entitled ‘Choice of law’, provides, in paragraph 1 thereof:

‘A person may choose as the law to govern his succession as a whole the law of the State whose nationality he possesses at the time of making the choice or at the time of death.’

 Bulgarian law

10      The zakon za nasledstvo (Law on Succession, DV No 22 of 29 January 1949), in the version applicable to the dispute in the main proceedings (‘the Law on Succession’), provides, in Article 48, that succession is to take place upon acceptance and that that acceptance is to take effect upon the opening of the succession.

11      Under Article 49(1) of that law, acceptance may be effected by written declaration made to the Rayonen sad (District Court, Bulgaria) in whose district the succession is opened. In that case, the acceptance is to be recorded in a register provided for that purpose.

12      In accordance with Article 51(1) of that law, at the request of any interested party, the Rayonen sad (District Court), after summoning the person entitled to inherit, is to set a time limit for that person to make a declaration of acceptance or waiver of the succession. Article 51(2) of that law provides that if the heir fails to respond within the prescribed time limit, he or she is to lose the right to accept the succession. Under Article 51(3) thereof, the heir’s declaration is to be entered in the register provided for in Article 49(1) of that law.

13      Pursuant to Article 52 of the Law on Succession, waiver of the succession is to be effected in accordance with the procedure laid down in Article 49(1) of that law and is to be entered in the register in accordance with the same procedure.

14      Article 26(1) of the Grazhdanski protsesualen kodeks (Code of Civil Procedure, DV No 59 of 20 July 2007), in the version applicable to the dispute in the main proceedings (‘the Code of Civil Procedure’), provides that the parties to civil proceedings are to be the persons on whose behalf and against whom the proceedings are brought. Article 26(2) of that code states that, except in the cases provided for by law, no person may assert the rights of a third party before a court in his or her own name.

15      Under Article 531(1) of the Code of Civil Procedure, proceedings in matters of non-contentious jurisdiction are to be instituted by an application of the person concerned.

16      In accordance with Article 533 of that code, the court is required to examine, of its own motion, whether the requirements for the decision sought are met. It may, of its own motion, take evidence and take into account facts which the applicant has not presented.

17      The pravilnik za administratsiata v sadilishtata (Regulations on Court Administration, DV No 68 of 22 August 2017), in the version applicable to the dispute in the main proceedings, lays down, in point 11 of Article 39(1):

‘The following books and registers shall be kept at the registry in electronic and/or paper form:

…

11.      a register of acceptance or waiver of succession’.

 The dispute in the main proceedings and the questions referred for a preliminary ruling

18      The applicant in the main proceedings, M. Ya. M., a Bulgarian national (‘the applicant’), states that he is the heir of his grandmother, M. T. G., a Bulgarian national who died in Greece on 29 March 2019.

19      The applicant brought an action before the Sofiyski rayonen sad (District Court, Sofia, Bulgaria), the referring court, seeking to enter in the register the declaration concerning the waiver of succession made by another heir, namely the deceased’s husband. He produced, in that regard, a certificate of succession drawn up by the Bulgarian authorities, according to which the deceased designated as heirs her husband H. H., a Greek national, her daughter I. M. N. and the applicant.

20      In the context of those proceedings, the applicant submitted a written record produced by the Eirinodikeio Athinon (Magistrate, Athens, Greece) stating that the deceased’s husband appeared before the latter on 28 June 2019 and declared the waiver of his inheritance. Furthermore, the deceased’s husband is said to have stated that the deceased had last resided in Greece.

21      However, the referring court notes that it has not been specified before it where the deceased was last habitually resident and that it will be able to gather information in that regard only after having established its jurisdiction for the purpose of registering a declaration concerning the waiver of a succession made previously before the court of the Member State in which the party waiving succession is habitually resident.

22      It is also apparent from the order for reference that the applicant is not acting as an authorised representative of the deceased’s husband, but submits that his interest in the registration of the declaration of waiver of the succession at issue is that of another heir of equal status, since that registration would increase his share of the estate.

23      In those circumstances, the referring court seeks to ascertain whether such a declaration should also be registered before the court with general jurisdiction to rule on the succession at issue as a whole, if that declaration has been received by the court having jurisdiction pursuant to Article 13 of Regulation No 650/2012. In addition, the referring court questions whether it is possible to register a declaration concerning the waiver of the succession of one of the heirs at the request of another heir.

24      According to the referring court, Article 13 of Regulation No 650/2012 may give rise to a conflict of jurisdiction since, under the general provisions of that regulation, jurisdiction is determined by the place of habitual residence of the deceased, and not by that of the heir. Although the court having jurisdiction to rule on a succession is, in principle, the court of the Member State where the deceased was last habitually resident, that latter court may not be aware of the registration of declarations of waiver or of acceptance of that succession made by the heirs before a court of the Member State of their habitual residence.

25      Thus, according to the referring court, Regulation No 650/2012 creates a legal vacuum by providing for concurrent jurisdiction of courts of different Member States, namely that of the court of the Member State in which the deceased was last habitually resident and that of the court of the Member State in which the heirs are habitually resident, without, however, requiring that latter court to notify the former court of the existence of such declarations.

26      In that regard, the referring court observes that the absence of such a notification obligation is at odds with the approach of the Bulgarian legislature and case-law, according to which all declarations of acceptance or of waiver of a succession are to be recorded in the same place and in a single court register, from which related searches may be carried out. According to the referring court, that approach serves to ensure legal certainty, which, in the present case, arises from the possibility of storing all data concerning acceptances or waivers of a succession in one place.

27      In so far as such a notification obligation is not expressly laid down in Regulation No 650/2012, the referring court is uncertain as to the nature of the proceedings before it, in which the applicant requests registration not of his own waiver of the deceased’s succession, but of that of one of the other heirs. Bulgarian law does not provide for such a procedure. The principle that every person is to defend his or her own rights before the courts prevents the declarations of others from being entered in the register of acceptances of succession and waivers of succession.

28      Therefore, that court questions, in the first place, whether Article 13 of Regulation No 650/2012 implicitly prohibits a declaration of waiver of a succession registered in the Member State of the habitual residence of an heir from being subsequently registered by a court of another Member State, namely that where the deceased allegedly had his or her habitual residence at the time of his or her death.

29      In this respect, the referring court expresses a preference for the solution of allowing the registration of several declarations of waiver of a succession in several Member States. It reasons that such a solution would not significantly affect legal certainty since the legal systems of the Member States lay down rules where there are several successive declarations of acceptance or of waiver of a succession and, moreover, in the event of a dispute concerning the succession, the court seised of a request can assess the legal effect of those declarations, according to the dates on which they were made.

30      In the second place, the referring court asks which person may apply, after a declaration of acceptance or of waiver of a succession has been registered in a Member State, for that declaration to be subsequently registered in another Member State. According to the referring court, that is an important point because Bulgarian procedural law does not provide for the possibility of such a declaration, which has already been registered in another Member State, being registered before a Bulgarian court. That declaration could be made only by the heir concerned himself or herself. Thus, the question arises as to whether an heir may apply, in the Member State of the deceased’s purported habitual residence, to register a declaration of waiver of the succession at issue made by another heir and registered in the Member State of that other heir’s habitual residence, where there is no express provision to that effect in the law of the first Member State.

31      According to the referring court, an effective application of Article 13 of Regulation No 650/2012 which is consistent with the objective of that article, as set out in recital 32 of that regulation – namely that an heir should not be required to travel to the deceased’s Member State of habitual residence or to appoint an authorised representative ad litem in that Member State for the purpose of declaring acceptance or waiver of a succession – requires that each heir may apply to register a declaration of waiver of a succession made previously in another Member State. In the present case, that would mean that Bulgarian procedural law could be disapplied, given the need to derogate from the principle of procedural autonomy of the Member States in order to ensure the effective application of Article 13.

32      By contrast, if it were possible to register a declaration of waiver of a succession both in the Member State of the habitual residence of the heir concerned and in the Member State where the deceased had his or her habitual residence at the time of his or her death, but only on condition that that heir requests so personally, that circumstance would have the effect of rendering Article 13 of Regulation No 650/2012 meaningless.

33      In this respect, the referring court adds that Regulation No 650/2012 contains a lacuna, in so far as it does not require the court having jurisdiction to receive a declaration of waiver of a succession to inform the court which has general jurisdiction to rule on the succession as a whole of the existence of that declaration. Consequently, and in order to prevent disputes between heirs but also for the purpose of ensuring that the intention of the party waiving succession is respected, each of the heirs should be permitted to have that intention recorded in the registers of the Member State of the deceased’s last habitual residence.

34      In those circumstances, the Sofiyski rayonen sad (District Court, Sofia) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1)      Is Article 13 of [Regulation No 650/2012], read in conjunction with the principle of the protection of legal certainty, to be interpreted as precluding, after an heir has already had registered with a court of the [Member] State in which he or she is habitually resident his or her acceptance or waiver of the succession of a deceased person who was habitually resident in another [Member] State of the European Union at the time of his or her death, [another heir from applying for] that waiver or acceptance [to be registered subsequently] in the latter State?

(2)      If the answer to the first question is that such registration is permissible, is Article 13 of [Regulation No 650/2012], read in conjunction with the principles of the protection of legal certainty and the effective implementation of EU law, and the obligation of cooperation between [Member] States under Article 4(3) TEU, to be interpreted as permitting [an application] for the registration of a waiver of the succession of a deceased person effected by an heir in the [Member] State in which he or she is habitually resident by another heir residing in the [Member] State in which the deceased was habitually resident at the time of his or her death, irrespective of the fact that the procedural law of the latter State does not provide for the possibility [of having] a waiver of a succession registered on behalf of another person?’

 Consideration of the questions referred

 Preliminary observations

35      It should be noted at the outset that it appears from the order for reference that, according to the information provided by the deceased’s husband, her last habitual residence was in Greece. This would imply that the Greek courts have jurisdiction to rule on the succession at issue as a whole, the applicable law being, in principle, Greek law, unless, in accordance with Article 22(1) of Regulation No 650/2012, the deceased chose the law of the Member State of which she was a national, namely Bulgarian law, as being the law applicable to her succession.

36      However, the referring court states that it does not have precise information concerning the last habitual residence of the deceased and that, in order to be able to gather such information, it will first have to establish its jurisdiction for the purpose of registering a declaration concerning the waiver of the succession made before the court of the Member State in which the party waiving succession is habitually resident.

37      It does not, therefore, appear that the Member State whose courts have general jurisdiction under Article 4 of Regulation No 650/2012 can be determined clearly in the present case. As the Advocate General stated, in essence, in point 39 of his Opinion, if it were established that the deceased’s last habitual residence was in Greece, it would be for the courts of that Member State, under that provision, to rule on all matters related to the succession concerned, the referring court having jurisdiction only to receive any declarations under Article 13 of that regulation as the court of the Member State of an heir’s habitual residence.

38      In the light of those considerations, it is for the referring court to ascertain, first of all, the place where the deceased had her habitual residence, before assessing the conditions for entry in a register, at the request of an heir, of a declaration concerning the waiver of the succession made by another heir in the Member State of his or her habitual residence.

39      In that regard, should it prove to be the case that the provisions of Bulgarian law prevent the referring court from examining its jurisdiction to rule on the succession at issue, that court should disregard them. According to the settled case-law of the Court, the national court which is called upon, within the exercise of its jurisdiction, to apply provisions of EU law, is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation (see, to that effect, judgment of 26 February 2013, Åkerberg Fransson, C‑617/10, EU:C:2013:105, paragraph 45 and the case-law cited).

 Substance

40      By its questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 13 of Regulation No 650/2012 precludes, after an heir has already had registered with a court of the Member State in which he or she is habitually resident his or her declaration of acceptance or of waiver of the succession of a deceased person whose habitual residence was, at the time of his or her death, in another Member State, another heir from applying for a subsequent registration of that declaration with the court of the latter Member State having jurisdiction.

41      According to settled case-law of the Court, it follows from the need for uniform application of EU law and from the principle of equality that the terms of a provision of EU law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Union; that interpretation must take into account not only its wording but also its context and the objective pursued by the legislation in question (judgment of 2 June 2022, T.N. and N.N. (Declaration concerning the waiver of succession), C‑617/20, EU:C:2022:426, paragraph 35 and the case-law cited).

42      With regard, in the first place, to the wording of Article 13 of Regulation No 650/2012, it must be borne in mind that, according to that provision, in addition to the court having jurisdiction to rule on the succession pursuant to that regulation, the courts of the Member State of the habitual residence of any person who, under the law applicable to the succession, may make, before a court, a declaration concerning the acceptance or waiver of the succession, of a legacy or of a reserved share, or a declaration designed to limit the liability of the person concerned in respect of the liabilities under the succession, are to have jurisdiction to receive those declarations.

43      As regards, in the second place, the context of Article 13 of Regulation No 650/2012, it must be borne in mind that that article forms part of Chapter II of that regulation, which governs all the grounds of jurisdiction in matters of succession. Article 13 of Regulation No 650/2012 thus provides for an alternative forum of jurisdiction which aims to enable heirs who do not have their habitual residence in the Member State the courts of which have jurisdiction to rule on the succession, in accordance with the general rules laid down in Articles 4 to 11 of Regulation No 650/2012, to make their declarations concerning the acceptance or waiver of succession before a court of the Member State in which they have their habitual residence (judgment of 2 June 2022, T.N. and N.N. (Declaration concerning the waiver of succession), C‑617/20, EU:C:2022:426, paragraph 37).

44      In respect of, in the third place, the objectives pursued by Regulation No 650/2012, it should be recalled that, according to recital 7 thereof, that regulation is intended to facilitate the proper functioning of the internal market by removing the obstacles to the free movement of persons who wish to assert their rights arising from a cross-border succession. In particular, in the European area of justice, the rights of heirs and legatees, of other persons close to the deceased and of creditors of the estate must be effectively guaranteed (see, to that effect, judgment of 2 June 2022, T.N. and N.N. (Declaration concerning the waiver of succession), C‑617/20, EU:C:2022:426, paragraph 42 and the case-law cited).

45      In that regard, the Court has already held that Article 13 of Regulation No 650/2012, read in the light of recital 32 thereof, according to which the purpose of that provision is to simplify the lives of heirs and legatees habitually resident in a Member State other than that in which the succession is being or will be dealt with, aims to simplify procedures for heirs and legatees by providing a derogation from the rules of jurisdiction set out in Articles 4 to 11 of that regulation (see, to that effect, judgment of 2 June 2022, T.N. and N.N. (Declaration concerning the waiver of succession), C‑617/20, EU:C:2022:426, paragraph 41 and the case-law cited).

46      As regards, in particular, the question of the submission of the declarations concerning the acceptance of the succession or the waiver thereof to the court having jurisdiction to rule on the succession, it must be observed that it is apparent from the last sentence of recital 32 of Regulation No 650/2012 that ‘persons choosing to avail themselves of the possibility to make declarations in the Member State of their habitual residence should themselves inform the court or authority which is or will be dealing with the succession of the existence of such declarations within any time limit set by the law applicable to the succession’.

47      The last sentence of recital 32 suggests, at first sight, that, according to the EU legislature, it is necessary that the declaration concerning the waiver of succession made before a court of the Member State of the habitual residence of the party waiving succession should be notified to the court having jurisdiction to rule on the succession. However, it must be noted that Article 13 of Regulation No 650/2012 does not provide for a mechanism for the communication of such declarations by the court of the Member State of the habitual residence of the party waiving succession to the court having jurisdiction to rule on the succession. On the other hand, the presumption of recital 32 is that persons who have made use of the right to make such declarations in the Member State of their habitual residence will assume the burden of communicating the existence of those declarations to the authorities responsible for the succession (see, to that effect, judgment of 2 June 2022, T.N. and N.N. (Declaration concerning the waiver of succession), C‑617/20, EU:C:2022:426, paragraph 47).

48      In that regard, while it is true that the party waiving succession has every interest in informing the court having jurisdiction to rule on the succession of the existence of such a declaration, in order to prevent that court from taking a substantially incorrect decision which is contrary to his or her declared intention, the fact remains that the provisions of Regulation No 650/2012 do not impose a binding obligation on the party waiving the succession in that regard. Therefore, it cannot be held that a party waiving succession must always, himself or herself, inform that court of the existence of that declaration.

49      In those circumstances, a broad interpretation is required as regards the notification of declarations made in accordance with Article 13 of Regulation No 650/2012 to the court having jurisdiction to rule on the succession. The objective of that notification is to enable that court to become aware of the existence of such a declaration and to take it into account when settling the succession. The manner in which that declaration is brought to the attention of that court is irrelevant in that regard.

50      Regulation No 650/2012 does not preclude, where an heir has registered with a court of the Member State of his or her habitual residence a declaration of waiver of the succession of a deceased person whose habitual residence was, at the time of his or her death, in another Member State, another heir from applying for a subsequent registration of that declaration in the latter Member State. It must be held that an heir who may benefit from such a declaration must be able to inform the court having jurisdiction to rule on a succession of the existence of that declaration, where the party waiving succession has not done so himself or herself, in order to facilitate the settling of that succession.

51      Such an interpretation is supported by the objectives pursued by Regulation No 650/2012, set out in paragraph 44 of the present judgment, seeking, inter alia, to remove obstacles to the free movement of persons who wish to assert their rights in the context of a succession having cross-border implications.

52      It is important to note, in that regard, that informing the court having jurisdiction to rule on a succession of the existence of a declaration of waiver of that succession, made by an heir before the court of the Member State of his or her habitual residence, within the meaning of Article 13 of Regulation No 650/2012, does not constitute a declaration on behalf of another person, but merely a notification of that declaration of waiver to that first court.

53      In addition, the fact that the legislation of a Member State, such as that at issue in the main proceedings, provides for that declaration of waiver to be entered in a court register, so that all declarations of acceptance or of waiver of a succession are recorded at the same place and in a single court register from which related searches may be carried out, is irrelevant in that regard.

54      Furthermore, in so far as the referring court states that Bulgarian law does not allow declarations made by another person to be entered in the register of acceptances of succession and waivers of succession, it must be held, in the light of the case-law of the Court referred to in paragraph 39 of the present judgment, that it is for the referring court to give full effect to Article 13 of Regulation No 650/2012 by accepting that the declaration of waiver of the succession at issue in the main proceedings may be notified to it by an heir other than the one who made that declaration in the Member State of his or her habitual residence and by disapplying, as the case may be, any contrary provision of national legislation.

55      In the light of all of the foregoing considerations, the answer to the questions referred is that Article 13 of Regulation No 650/2012 must be interpreted as not precluding, after an heir has already had registered with a court of the Member State in which he or she is habitually resident his or her declaration of acceptance or of waiver of the succession of a deceased person whose habitual residence was, at the time of his or her death, in another Member State, another heir from applying for a subsequent registration of that declaration with the court of the latter Member State having jurisdiction.

 Costs

56      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Tenth Chamber) hereby rules:

Article 13 of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession,

must be interpreted as not precluding, after an heir has already had registered with a court of the Member State in which he or she is habitually resident his or her declaration of acceptance or of waiver of the succession of a deceased person whose habitual residence was, at the time of his or her death, in another Member State, another heir from applying for a subsequent registration of that declaration with the court of the latter Member State having jurisdiction.

[Signatures]

*      Language of the case: Bulgarian.

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