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Directive 2004/38/EC thread

Immigration to European countries, don't post UK or Ireland related topics!

Moderators: Casa, JAJ, ca.funke, Amber, Zimba, vinny, Obie, EUsmileWEallsmile, batleykhan, geriatrix, John, ChetanOjha, archigabe, push, Administrator

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ciaramc
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Post by ciaramc » Mon May 25, 2009 2:49 pm

I think what charles means is that from other peoples experiences - If you have a EU residence card from say UK/Ireland you could not travel around Schengen states without a visa? The same way Ireland/UK supposedly would not let say a person with an Spanish resident card in without a valid visa???? Charles am I right?

I'm not sure this is correct though in theory as a family member of a EU citizen that is exercising EU treaty rights you should be allowed to travel freely without a visa if traveling with spouse?? Can you also travel visa-free without spouse???

I think this same question keeps getting asked on this forum!! Because most countries are not reinforcing the Directive it is up to all of us as EU citizens to make a complaint against the country that is with holding our rights! We can come on here and talk all we want but unless we all start complaining about the way we are being treated nothing will change!

I find especially here in Italy that people just agree with the authorities when they say no instead of standing up for their rights!! Unless we all speak out nothing will change!!

The IO have to be informed and trained better!! It is a joke that none of them know about any of these laws regarding spouses of EU citizens and free movement! It is not like this directive just came into force these countries have had years to implement the rules and have still failed to do so!

I understand that people abuse the system....and due to this they look at everyone with doubt but the treatment of EU citizens and there spouses is disgracefull!!!

So I think everytime someone abuses there power and does not follow the law!! WE SHOULD REPORT THEM! to the European commission!

charles4u
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Post by charles4u » Mon May 25, 2009 2:55 pm

XXXXXXXXXXXX
Last edited by charles4u on Tue May 31, 2011 3:12 pm, edited 1 time in total.
Charles4u

86ti
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Post by 86ti » Wed May 27, 2009 8:19 am

charles4u wrote:I dont think anyone allows travelling alone for EU family members, only Hungary allows visa-free travel to Hungary even when travelling alone according to what the told me at there embassy in Bucharest. You can even travel alone once you hold a residence card as family member.
Denmark and Cyprus say so too on their UK embassy web pages.

ca.funke
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Cyprus

Post by ca.funke » Wed May 27, 2009 10:56 am

I got this email from the Cypriot embassy a while ago:
---------- Original message ----------
From: CY Embassy of Dublin <dublinembassy@mfa.gov.cy>
Date: Fri, Feb 8, 2008 at 18:49
Subject: Visa Requirements for Cyprus
To: Christian

Dear Christian,

In regards to the e-mail that you sent to the Ministry of Foreign Affairs
of the Republic of Cyprus in 25 January 2008 concerning the Cyprus visa
requirements for your Lebanese wife, which was forwarded to the Embassy a
few days later, the Embassy of the Republic of Cyprus in Ireland would like
to state the following:

Family members of an EU-national who are not nationals of an EU Member
State themselves are exempted from the visa requirement provided that they
reside in an EU Member State and hold a valid residence card or permit.

Therefore, your wife does not need a visa to visit Cyprus provided that she
has a valid residence card or permit in an EU Member State, in your case
Ireland.

Besides a valid passport, the Embassy advises non-EU spouses of EU
nationals who wish to travel to Cyprus to take with them their valid
residence card or permit of the EU Member State that they are residing and
the original or a copy of their marriage certificate in order to be able to
prove to the airport authorities the relation that they have to the EU
national.

For clarification purposes I would also like to state that non-EU spouses
of EU nationals can actually travel to Cyprus without a visa even when
travelling alone.
In other words, your spouse does not have to accompany
you to Cyprus in order for the above mentioned criteria to apply. In such
cases, the Embassy advices non-EU spouses of EU nationals to take with them
their valid residence card or permit of the EU Member State that they are
residing, the original or a copy of their marriage certificate and a copy
of the main page of the passport of their EU-national spouse.

I hope the above clarifies the situation and I apologize for any
inconvenience caused.

Kind Regards,

...
...
Embassy of the Republic of Cyprus in Ireland
71 Lower Leeson Street
Dublin 2
T:+353 1 676 3060
F:+353 1 676 3099
dublinembassy@mfa.gov.cy

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Re: Cyprus

Post by DFDS. » Wed May 27, 2009 1:17 pm

ca.funke wrote:I got this email from the Cypriot embassy a while ago:
---------- Original message ----------
From: CY Embassy of Dublin <dublinembassy@mfa.gov.cy>
Date: Fri, Feb 8, 2008 at 18:49
Subject: Visa Requirements for Cyprus
To: Christian

Dear Christian,

In regards to the e-mail that you sent to the Ministry of Foreign Affairs
of the Republic of Cyprus in 25 January 2008 concerning the Cyprus visa
requirements for your Lebanese wife, which was forwarded to the Embassy a
few days later, the Embassy of the Republic of Cyprus in Ireland would like
to state the following:

Family members of an EU-national who are not nationals of an EU Member
State themselves are exempted from the visa requirement provided that they
reside in an EU Member State and hold a valid residence card or permit.

Therefore, your wife does not need a visa to visit Cyprus provided that she
has a valid residence card or permit in an EU Member State, in your case
Ireland.

Besides a valid passport, the Embassy advises non-EU spouses of EU
nationals who wish to travel to Cyprus to take with them their valid
residence card or permit of the EU Member State that they are residing and
the original or a copy of their marriage certificate in order to be able to
prove to the airport authorities the relation that they have to the EU
national.

For clarification purposes I would also like to state that non-EU spouses
of EU nationals can actually travel to Cyprus without a visa even when
travelling alone.
In other words, your spouse does not have to accompany
you to Cyprus in order for the above mentioned criteria to apply. In such
cases, the Embassy advices non-EU spouses of EU nationals to take with them
their valid residence card or permit of the EU Member State that they are
residing, the original or a copy of their marriage certificate and a copy
of the main page of the passport of their EU-national spouse.

I hope the above clarifies the situation and I apologize for any
inconvenience caused.

Kind Regards,

...
...
Embassy of the Republic of Cyprus in Ireland
71 Lower Leeson Street
Dublin 2
T:+353 1 676 3060
F:+353 1 676 3099
dublinembassy@mfa.gov.cy
May i commend the poster for such a wonderful revelation. No wonder, this has been one of our major topics of recent. For all those who have contributed towards the thread you can bare witness.We have had lots of scenarios concerning the issue of trvling with in the member states visa free, as family members of EEA persons exercising treaty rights.Many members have tried to post there trvl experiences as regards to this very issue & they have come up with different conclusions, of which some have been positive & others negative. Besides, some contributions have been mare assumptions & some of us have been requesting for their athuntication as they weren't at all a reflection of the directive.

My sincere regards to Directive 2004/38/ec, charles4u, 86ti, ca.funke,ciaramc,Richard66 & whoever I've not mentioned. Thanks for your time & wonderful contribution. Now we all know where we stand, though Cyprus is just one among the many member states that have to enforce the directive.

Lastly, there is a need to educate all careers, regional & international about the free movement directive, as most of them have no knowledge of it. The TIMs (travel information manuals) that careers & trvl agents use, have to be updated as well, to save Paxs( passengers) time at the ports.

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Post by avs » Fri Apr 02, 2010 7:08 pm

Hello all, I have a question that i cant seem to get an answer to. Please help. sorry if i am not supposed to post this in this topic but i thought it might be relative in someways.

I am British living in France for 4 years now and i have never held a residence card nor been registered. We want to apply for my husbands Carte de Séjou. And now i am been told for him to apply for one i must be registered or hold a residence card - is this true?

If it is, why then when i try to register with the local Marie, they tell me i dont need to be registered as i have the right to be here. And the prefecture tell me i dont need a residence card they no longer issue them to British nationals.

I also read i was suppose to register within 3 months of arriving if i was planning to stay over 3 months. I didnt know that back then and have been here for 4 years now, i got married here, had kids here, worked here, paid tax, i am registered (well was) with the assidic, CAF i hold the card vitale dont all those factors make me a resident what more do they want??!!! and should this really be a problem for my husband now?

If i am free to move around the EU and seek employment what is all this business with getting a residence card?

Please help!!!!

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Post by 86ti » Fri Apr 02, 2010 7:25 pm

avs wrote:I am British living in France for 4 years now and i have never held a residence card nor been registered. We want to apply for my husbands Carte de Séjou. And now i am been told for him to apply for one i must be registered or hold a residence card - is this true?
That would be a registration certificate or whatever the French equivalent is. Member states are free to require registration. But official French web pages state that you can get one on request... (But you probably read that yourself.)

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Post by avs » Fri Apr 02, 2010 7:30 pm

Yes, i have and i tried to obtain one, but was told that it only applies to non EU nationals, not me as i am British so i dont know how to get one if i need one.

86ti
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Post by 86ti » Sat Apr 03, 2010 8:38 am

avs wrote:Yes, i have and i tried to obtain one, but was told that it only applies to non EU nationals, not me as i am British so i dont know how to get one if i need one.
No. The registration certificate is for EEA nationals (and maybe Swiss). The residence card is for their non-EEA national family members. Neither is a permit either though it might be still in some heads.

avs
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Post by avs » Sat Apr 03, 2010 7:09 pm

I found this piece of information on http://mairie01.paris.fr

Registration requirement of European citizens in town hall
Article L 121-2 of the Code of Entry and Residence of Aliens provides that EU citizens who wish to settle in France, must register with City Hall their municipality of residence within 3 months of their arrival in France. Otherwise, they will be deemed to reside in France for less than 3 months. This requirement will apply to people who came in France after the entry into force of an order. Our schedules will be amended upon its release.

I am not sure when this came into force, but i am pretty sure i came in before this was put in place. Would this mean that i dont need to register at this point and my husband can still obtain a residence card?

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Post by Directive/2004/38/EC » Fri Apr 09, 2010 1:42 pm

If you are British and are working in France or are self sufficient, then your husband can get a Residence Card. Does not matter if you have been there for a long time, or only a few weeks.

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cv

Post by fortunitos » Fri Apr 09, 2010 2:06 pm

watch free rubbish here: http://bit.ly/bqaTMo

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Re: cv

Post by Directive/2004/38/EC » Fri Apr 09, 2010 3:22 pm

fortunitos wrote:watch free rubbish here: http://bit.lxxy/bqaxxxTMo
SPAM!
Last edited by Directive/2004/38/EC on Tue Nov 02, 2010 4:37 pm, edited 1 time in total.

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Legality of Denmark's interpretation of Directive 2004/38/EC

Post by MSH » Mon Jun 21, 2010 8:19 pm

http://eumovement.wordpress.com/2007/06 ... -question/

According to Directive 2004/38/EC, if an EU citizen along with his non-EU spouse takes up residence in an EU member state OTHER than the one the EU citizen is a national of, he and his spouse can return to his own country, claiming to have exercised his right to free movement, thus enabling the spouse to obtain permanent residency.

If the information in the above link is correct, then the LENGTH of time the couple have resided in the other member state is irrelevant???

The Danish Ministry for Foreigners currently claim that a number of requirements have to be met by Danish citizens returning from other EU states with their non-EU spouses/partners, some of which are:

-The couple have to have either bought a house/apartment or have rented one for an indefinite time period in the other EU member state (renting a room with friends or family is NOT acceptable)

-The couple shall have stayed in the other EU state for a non-specified length of time (the Danish authorities will not divulge which criteria is used in determining if the length of stay in the other EU state is sufficient to be considered a so-called 'de facto' move)

How can this be in compliance with the Directive?

If I move to another EU member state with my non-EU spouse and we can prove we have been residing in the other state through documentation from the other state's central registry of persons, have I then not exercised my right to free movement (provided I have sufficient funds for our stay there) and is my spouse then not entitled to reside with me in my own country?

I don't understand how the Danish authorities are allowed to put conditions up for it's citizens in order for them to gain access to their rights as EU-citizens? How can a case against Denmark be brought before the European Court?

Regards,

Martin.

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Re: Legality of Denmark's interpretation of Directive 2004/3

Post by Directive/2004/38/EC » Tue Nov 02, 2010 4:42 pm

MSH wrote:http://eumovement.wordpress.com/2007/06 ... -question/

According to Directive 2004/38/EC, if an EU citizen along with his non-EU spouse takes up residence in an EU member state OTHER than the one the EU citizen is a national of, he and his spouse can return to his own country, claiming to have exercised his right to free movement, thus enabling the spouse to obtain permanent residency.

If the information in the above link is correct, then the LENGTH of time the couple have resided in the other member state is irrelevant???

The Danish Ministry for Foreigners currently claim that a number of requirements have to be met by Danish citizens returning from other EU states with their non-EU spouses/partners, some of which are:

-The couple have to have either bought a house/apartment or have rented one for an indefinite time period in the other EU member state (renting a room with friends or family is NOT acceptable)

-The couple shall have stayed in the other EU state for a non-specified length of time (the Danish authorities will not divulge which criteria is used in determining if the length of stay in the other EU state is sufficient to be considered a so-called 'de facto' move)

How can this be in compliance with the Directive?

If I move to another EU member state with my non-EU spouse and we can prove we have been residing in the other state through documentation from the other state's central registry of persons, have I then not exercised my right to free movement (provided I have sufficient funds for our stay there) and is my spouse then not entitled to reside with me in my own country?
Martin, sorry I think I overlooked your post.

You are confusing two things.

You reside in another member state whenever you visit. That is fine, but not very material any more.

If you want to use EU law to bring your spouse to your home country, then you need to be aware of the Surinder Singh ( http://eumovement.wordpress.com/2007/04 ... ional-law/ ) ruling. The key thing is that you were doing real work in another EU country and that you plan to do real work in your home EU country.

Your home EU country can not require you to have a lease. That is just stupid. And they can not require you to have worked for a specific period of time. But I would be surprised if they have a problem with you working for 6 months in another country and then coming home.

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Re: Legality of Denmark's interpretation of Directive 2004/3

Post by MSH » Wed Nov 03, 2010 8:49 pm

Directive/2004/38/EC wrote:
Martin, sorry I think I overlooked your post.

You are confusing two things.

You reside in another member state whenever you visit. That is fine, but not very material any more.

If you want to use EU law to bring your spouse to your home country, then you need to be aware of the Surinder Singh ( http://eumovement.wordpress.com/2007/04 ... ional-law/ ) ruling. The key thing is that you were doing real work in another EU country and that you plan to do real work in your home EU country.

Your home EU country can not require you to have a lease. That is just stupid. And they can not require you to have worked for a specific period of time. But I would be surprised if they have a problem with you working for 6 months in another country and then coming home.
No, here in Denmark, whether or not I have RESIDED in another member state is actually highly relevant. The Danish authorities currently maintain that a Danish citizen is only covered by community law and the benefits of directive 2004/38 if he has LIVED IN, as in moved to, set up household, opened bank accounts and aquired home insurance etc. etc. in another member state.

This is completely without legal basis in any part of the directive or established case law of the ECJ.

furthermore, Denmark routinely EXPELS or REFUSE residence to third country spouses of Danish citizens who can demonstrate to have exercised their right to free movement as required by the directive, but have failed to meet the added NATIONAL DANISH requirements of owning their own home or leasing apartments on special leases with no end-limit like I listed.

As you probably know, the directive expressly forbid member states to expel spouses or EU citizens unless on serious grounds of public security and the ECJ granted Mary Carpenter right of residence in the UK exactly because the British government violated art. 8 on respect for family life of the European Human Rights Convention.

Denmark also refuse right of residence to spouses of people who have worked in another member state for less than 8 weeks. Again, NOT legal.

The list of very serious breaches of community law here in Denmark is long and mind-bogglingly exhaustive.

I understand I can just uproot my life and go live in another EU member state but since my government have no LEGAL basis for forcing me out of my own country I have decided that I don't really feel like leaving.

I'm staying and I will fight them every inch of the way.

MSH.

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Re: Legality of Denmark's interpretation of Directive 2004/3

Post by Directive/2004/38/EC » Wed Nov 03, 2010 9:15 pm

MSH wrote:Denmark also refuse right of residence to spouses of people who have worked in another member state for less than 8 weeks. Again, NOT legal.
EU law does not apply in your own country unless you have worked in another country and then are moving back. Visiting/residing in another country briefly does not count.

But working in another country does count. It is not clear what the cutoff is. Is one day of work in Germany enough to let you use the ECJ ruling in Singh? Probably not? Nor is one hour of work in the UK. But 6 months of work is probably enough.

If you read the Singh ruling, you see it does not set a particular limit. It just says that you have to be working in another EU country and plan to come back to your home state and work.

8 weeks seems very low to me.

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Post by 86ti » Thu Nov 04, 2010 8:31 am

Just to clarify: one does not necessarily have to physically relocate to another member state. Cross-border working or providing services to some other member state may be sufficient too.

There is no clear cut time after which EU law would become effective. If I remember correctly someone here once mentioned a case where 10 weeks were considered sufficient by the ECJ. It all boils down to the circumstances of an individual case as it is typical for EU law.
MSH wrote:[...] NATIONAL DANISH requirements of owning their own home or leasing apartments on special leases with no end-limit like I listed.
That's certainly way over the top and for many simply unrealistic. Rentals are typically always time limited.

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Post by Directive/2004/38/EC » Thu Nov 04, 2010 11:10 am

86ti wrote:Just to clarify: one does not necessarily have to physically relocate to another member state. Cross-border working or providing services to some other member state may be sufficient too.
Any references? I am not sure how that might enable coverage under the Singh ruling...

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Post by 86ti » Thu Nov 04, 2010 11:40 am

Directive/2004/38/EC wrote:
86ti wrote:Just to clarify: one does not necessarily have to physically relocate to another member state. Cross-border working or providing services to some other member state may be sufficient too.
Any references? I am not sure how that might enable coverage under the Singh ruling...
The whole story did not just end with a case nearly twenty years ago (although one might get the impression that it did for the UK. A relevant case for returnees is the Eind case from 2007.) Providing services has been delt with in the Carpenter case. Incidentially, another case lost by the UK.

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Re: Legality of Denmark's interpretation of Directive 2004/3

Post by MSH » Thu Nov 04, 2010 5:42 pm

Directive/2004/38/EC wrote: EU law does not apply in your own country unless you have worked in another country and then are moving back. Visiting/residing in another country briefly does not count.
I'm sorry, but I disagree with this..

EU law applies to all citizens of the EU. This is stated explicitly in the Lisbon treaty, art. 9:

"In all its activities, the Union shall observe the principle of the equality of its citizens, who shall receive equal attention from its institutions, bodies, offices and agencies. Every national of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to national citizenship and shall not replace it."

Clear cut language.

'Every national of a Member State shall be a citizen of the Union.'

Now, what section or article of directive 2004/38 is it PRECISELY that you feel stipulates WORK in another member state for the benefits of the directive to come into effect for a EU citizen?

In art. 3 the wording is:

"Beneficiaries
1. This Directive shall apply to all Union citizens who move
to or reside in a Member State other than that of which they
are a national, and to their family members as defined in point
2 of Article 2 who accompany or join them."

'Move to' is clearly distinct from 'reside in', yes?

No mention of work whatsoever, btw.

I feel very strongly that anybody who has ever physically been in a member state other than that of his own is covered by the provisions of directive 2004/38, even as tourists.

The requirement that they have to set up household or purchase real estate and live in the other member state for 6 months or more is ridiculous and without basis in either the directive or EU's fundamental rights.

MSH.

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Re: Legality of Denmark's interpretation of Directive 2004/3

Post by 86ti » Thu Nov 04, 2010 7:24 pm

MSH wrote:EU law applies to all citizens of the EU. This is stated explicitly in the Lisbon treaty, art. 9:

"In all its activities, the Union shall observe the principle of the equality of its citizens, who shall receive equal attention from its institutions, bodies, offices and agencies. Every national of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to national citizenship and shall not replace it."

Clear cut language.

'Every national of a Member State shall be a citizen of the Union.'
Yes, sure but that has been already established in the Maastricht Treaty in 1992 and expanded on in 1997 by the Amsterdam Treaty. The crucial question would be how to interpret this 'equality' that is mentioned in the TFEU. I wonder if the Zambrano case goes in this direction.

MSH wrote:I feel very strongly that anybody who has ever physically been in a member state other than that of his own is covered by the provisions of directive 2004/38, even as tourists.
There are ECJ cases that deal with such questions. Unfortunately, I do not have a reference but a key phrase, I believe, was "genuine and effective".

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Re: Legality of Denmark's interpretation of Directive 2004/3

Post by MelC » Fri Nov 05, 2010 10:25 pm

86ti wrote:
MSH wrote:EU law applies to all citizens of the EU. This is stated explicitly in the Lisbon treaty, art. 9:

"In all its activities, the Union shall observe the principle of the equality of its citizens, who shall receive equal attention from its institutions, bodies, offices and agencies. Every national of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to national citizenship and shall not replace it."

Clear cut language.

'Every national of a Member State shall be a citizen of the Union.'
Yes, sure but that has been already established in the Maastricht Treaty in 1992 and expanded on in 1997 by the Amsterdam Treaty. The crucial question would be how to interpret this 'equality' that is mentioned in the TFEU. I wonder if the Zambrano case goes in this direction.

MSH wrote:I feel very strongly that anybody who has ever physically been in a member state other than that of his own is covered by the provisions of directive 2004/38, even as tourists.
There are ECJ cases that deal with such questions. Unfortunately, I do not have a reference but a key phrase, I believe, was "genuine and effective".
Genuine and effective ~ and with rnumeration no less!!!

a very annoying stumbling block for me!

my work is very genuine, and can be proven, it is also effective, just at this time it brings no renumeration!

case law thoughts anyone?
MelC

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Re: Legality of Denmark's interpretation of Directive 2004/3

Post by Directive/2004/38/EC » Fri Nov 05, 2010 10:41 pm

MelC wrote:my work is very genuine, and can be proven, it is also effective, just at this time it brings no renumeration!

case law thoughts anyone?
What exactly do you do?

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Post by 86ti » Sat Nov 06, 2010 9:26 am

Here is a case with some more hints in the discussion.

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