The AÜG-reform - A restriction of temporary work and more restrictive distinction between service contracts and contracts for work - APSCo

 
The AÜG-reform – A restriction of temporary
work and more restrictive distinction between
service contracts and contracts for work
November, 16th in 2015 the Federal Ministry of Labor and Social        u   Hire-company-rotary – borrower rotary
Affairs presented the long time before announced draft bill to
                                                                           While the legislator ruled out a hire-company-rotary being
reform the “Arbeitnehmer-überlassungsgesetz” (AÜG) – the
                                                                           used for avoidance of the 18 months limitation, a borro-
German Temporary Employment Act – including ancillary laws.
                                                                           wer-rotary has not been taken into consideration. In dif-
The reform had been announced in the coalition agreement of
                                                                           ference to the so called “revolving door clause” (§ 8para
the present federal government and has been awaited full of
                                                                           3 AÜG-E), a recognition of lease periods of the respective
suspense ever since. This suspense changed into dismay for
                                                                           temporary worker in affiliated companies has not been
understandable reasons:
                                                                           designated. Hence, a temporary worker can switch bet-
                                                                           ween allied companies and the 18 months-time limit starts
Main thrust: Reform of the AÜG                                             all over again each time.
As a matter of priority the Federal Ministry of Labor aims at a
                                                                       u   Customer’s collective bargaining agreement opening
more restrictive embodiment of the laws for temporary work.
                                                                           clause
That means a step backwards for substantial parts of the
laws, even behind the Hartz-reforms which had been trans-                  According to its grounds, the legislator will not intervene
posed under the chancellorship of Gerhard Schröder.                        in existing collective bargaining agreements that regulate
                                                                           the maximum lease period. The draft bill includes the ruling
                                                                           that a collective agreement which is binding for a customer
(Re-)Introduction of a maximum lease period                                can impose a longer or shorter maximum lease period. As
The current version of the AÜG designates only a tempo-                    far as a customer’s collective bargaining agreement pro-
rary form of hiring out employees. The legal meaning and                   vides for a works agreement, the maximum lease period
embodiment of this principle introduced by the legislator as               can be modified by such an agreement. This possibility only
a pure proposal has lately been subject to numerous contro-                applies to customers being bound by collective bargaining
versies. These shall be solved by the prospective maximum                  agreements, meaning customers that are members of the
lease period of 18 months (§ 1para 1b AÜG-E), with an explicit             respective employer’s association. If the customer does not
reference to the (allegedly) created certainty of justice. The             apply a collective bargaining agreement, according to the
maximum lease period is being calculated with regard to the                draft bill he shall not be able to refer to collectively agreed
employee, not the workplace. Hence, the employer can hire                  on extensions of the maximum lease period for temporary
the same employee only for 18 months. But as soon as the 18                workers. This is tantamount to coalition pressure and ext-
months are expired he can replace the employee with another                remely questionable under constitutional law (Art. 9para 3
temporary employee.                                                        GG).

u   Recognition of preceding lease periods – revaluation after         u   Employment with customer and pending withdrawal of
    6 months of interruption                                                temporary employment permission
    In order to calculate the 18 months maximum lease period,              In terms of legal consequences the maximum lease period
    all former lease periods with the respective customer have             is safeguarded twice. In the future, the exceeding of the
    to be taken into account. It is trivial whether the employee           time limit will be punished with a fine up to 30,000 € in
    had been hired out to the customer by the same employer                each individual case as an infringement of § 16para 1 No. 1d
    or another staffing firm. As soon as the employee has not              AÜG by the staffing company. Furthermore, the owner of a
    been hired out to the customer for more than 6 months,                 temporary employment permission will be tested on his reli-
    this principle is no longer valid. Therefore, staffing firms and       ability explicitly on the basis of obeying the 18 months-time
    customers will place a higher value on written documenta-              limit (§ 3para 1 No. 1 AÜG-E). As a consequence, the staf-
    tion of the end of operating periods in the future in order to         fing company is threatened with the withdrawal or refusal
    bar the recognition of preceding periods in a legally secure           to extend the fixed-term temporary employment permis-
    manner.                                                                sion.
Employment & Pensions

    In addition, the employment between temporary emplo-            remuneration matters to regular employees of the hiring com-
    yee and staffing company is invalidated under § 9 No. 1b        pany, the temporary employee must be paid at least the mini-
    ­AÜG-E, which then results in an employment between             mum wage of the temporary employment industry. From now
     temporary employee and customer under § 10para 1 AÜG-          on compensation in money for benefits in kind (for example
     E. In this way, the customer becomes debtor of those           meals in the canteen for a reduced price) granted in the cus-
     social security contributions which have to be paid for        tomer’s business is established in law.
     employees being hired for more than 18 months for the
                                                                    u   Slightly larger range under application of industry
     time period that exceeds the allowed 18 months-time limit
                                                                        surcharge collective bargaining agreements
     (§ 28epara 2 clause 3 SGB IV-E). The nonpayment as a
     criminal offense (§ 266a StGB) is the real transferred risk        The last few months, the temporary employment indus-
     at the expense of the customer.                                    try has set all the levers in motion in order to avoid the
                                                                        application of the equal-pay principle after 9 months of
    However, the temporary employee is given the right to
                                                                        employment in companies that are under the application
    object to his transition of employment in writing during
                                                                        of industry surcharge collective bargaining agreements.
    the first month after exceeding the 18 months-time limit.
                                                                        These efforts have almost been ignored in the Federal
    According to the justification for the law, this ruling is
                                                                        Ministry’s draft. The applicability of such industry surchar-
    to avoid a transition from a solvent hiring company to a
                                                                        ges is only to extend the 9 months limit to a 12 months
    bankrupt company. This regulation provides a possibility
                                                                        limit, so that an employee hired out to a company in the
    to exceed the otherwise absolute maximum lease period
                                                                        metal and electrical industry gets an industrial surcharge of
    by the employee waiving the transition to the customer.
                                                                        50 % after 9 months and equal pay after 12 months with
    The specialized literature will certainly be preoccupied for
                                                                        regard to all remuneration aspects. The draft bill massively
    the next months with the question of the earliest possible
                                                                        intervenes in the autonomy of collective bargaining of the
    point in time to effectively renounce as well as the labor
                                                                        temporary employment associations by the fact that the
    courts will be in years to come. Whether the waiver of the
                                                                        step-by-step increasing tarification system agreed on with
    employment transition to the customer will have an impact
                                                                        the trade unions in charge is being overlaid with the laws
    on the infringement of law and the test of reliability is not
                                                                        after 12 months of temporary employment. It is going to be
    stated by the draft bill.
                                                                        examined whether this legislative imposition is valid under
u   Legal consequences no earlier than July 18th, 2018                  constitutional law as well as with regard to the European
                                                                        Temporary Worker’s Directive whether the freedom to
    The reform package gives only one comforting aspect:
                                                                        provide services of foreign staffing companies is unjustly
    Under § 19 para 2 AÜG-E the calculation of the 18 months-
                                                                        restricted.
    time limit will only consider time periods from January 17th,
    2017 onwards. This means with regard to that important          u   Recalculating only after 6 months of suspension
    aspect the consequences of the legislative reform will be
                                                                        The aforementioned principles for the calculation of the
    turned on no earlier than July 18th, 2018. In the face of the
                                                                        maximum lease period are applicable to the 9 and 12
    massive intervention by the maximum time period, this is a
                                                                        months’ time limits. The equal pay time limit is being recal-
    small consolation for the staffing sector and its customers.
                                                                        culated after an employment suspension of 6 months.
                                                                        Periods with shorter suspensions are taken into account.
Equal pay at the latest after 12 months of                              Hire-company-rotaries are not realizable due to the fact
                                                                        that even periods with a different staffing firm are taken
temporary employment                                                    into account. No extension is designated to affiliated com-
It has been a known fact since the coalition agreement had              panies for the borrower, hence, the temporary employee
been entered into, that the legislator understands the 18               can switch between affiliated companies and the equal pay
months-time limit as the absolute final deadline when hir-              time limit is being recalculated each time.
ing out employees. Besides, it is planned to impose massive
                                                                    u   Legal consequences already from January 17th 2017 on
restrictions on longtime temporary employments already after
9 or 12 months. The envisaged means is the duty imposed on              The certainly most serious interference of the draft bill is
the staffing company to ensure equal pay for the temporary              the missing transitional arrangement for the calculation of
employee after 9 months work at the same hiring company.                the equal pay time limit different to the maximum lease
In this way a deviation from the principle of equality – now            period. As soon as the draft bill comes into force January
standardized in § 8 AÜG-E – in respect of remuneration is               1st in 2017, the equal pay principle will be valid immediately
only possible for 9 months through the application of a collec-         for all temporary employees that have been hired by the
tive bargaining agreement. After expiration of that period the          same customer for 9 or 12 months. § 19 para 2 AÜG-E
temporary employee has to be placed into a position equal in            states that for the calculation of the maximum lease period
Employment & Pensions

    only those periods started after January 1st 2017 can be        Duty to name the hired out employee
    taken into account. Conversely, that means for the equal
    pay time limit even periods before that date will be taken      In order to avoid abuse, the draft bill further secures the
    into account. That results in a serious impact for all frame-   duty to name the temporary employee. It is designated for
    work contracts concerning temporary work because in this        the employer to name the specific person of the employee
    respect for periods after January 1st 2017 an adaption of       before (!) the respective temporary work starts. Framework
    hourly rates should be earmarked as long as if at all a lease   agreements for personnel services may still be sealed inde-
    period longer than 9 or 12 months is worthy of considera-       pendently of specific individuals. A personalized appropriation
    tion for the customer.                                          is required before an employee is being hired. The Federal
                                                                    Employment Agency will explicitly check on this in their com-
                                                                    pany audit relevant for the temporary work permission, so
Duty to name and clearly define                                     that written documentation of the personalized appropria-
For annulling so called “stock and protection permissions”, the     tion becomes more important. Anyhow, the appropriation will
draft bill will only accept a contract between staffing firm and    probably be subject to the written form requirement of § 12
hiring company as valid if it explicitly states the temporary       para 1 AÜG-E.
work as such. The lack of that term invalidates the contract
                                                                    u   Duty of information
with the customer under § 9 No. 1a AÜG-E. Consequently,
the customer will end up in a direct employment with the                Also it should be attached value to inform the employee
temporary employee (§ 10para 1 AÜG-E). This ruling aims                 about the fact that he will be employed as a temporary
the impossibility for the contracting parties to reinterpret the        employee before (!) every hiring out. A respective duty
sham agreement for services or work into a contract for tem-            shall be laid down by § 11para 2 AÜG-E. Infringements will
porary work referring at the same time to a (precautionary)             be punished with a fine up to 1,000 € in each individual
issued permission for temporary work. Referring to a legal              case (see § 16 para 1 No. 8,para 2 AÜG-E). This duty of
permission shall only be legitimate if the contracting parties          information does not only apply to service contracts and
declared the contract to be intended for temporary work.                contracts of work. The hiring out of highly qualified person-
                                                                        nel will not be possible to be carried out the same way as in
This ruling is of great significance for those constellations
                                                                        the past where within the contractual design it had mostly
where the contract did not name temporary work and does
                                                                        been paid attention to the employee not feeling himself as
not intend to in the future, but the personnel of the staffing
                                                                        a temporary employee. In this respect attention has to be
firm is highly integrated in the customer’s operational proce-
                                                                        paid to the fact that the documentation of contracts etc.
dure. IT-Service providers, renowned consultancies, engineer-
                                                                        should be changed before the AÜG comes into force on
ing companies, caterer and promotion agencies often own
                                                                        January 1st 2017 in order to avoid the situation of having
permission simply for the possible situation of having their
                                                                        the duty at the beginning of 2017 to inform the employee
contract reinterpreted as temporary work. The customer has
                                                                        about the temporary employee status in an isolated way.
been protected from legal consequences by the permission
so far. Due to the duty to name and clarify under § 1para 1
clause 5 AÜG-E this certainty is now omitted.                       Explicit prohibition of chain-leasing
u   Right of the employee to object                                 Surprisingly, the draft bill contains an explicit prohibition of
    The hired out employee has the right to object to the tran-     chain-leasing. The Federal Employment Agency has always
    sition of the employment to the customer in writing within      been of the legal opinion that on-lending of employees was
    one month after the intended start date of the temporary        inadmissible. Sanctions were almost impossible since a legal
    work. This will be of great importance where the custo-         ruling against chain-leasings did not exist. Now § 1para 1
    mer’s employee as a specialized consultant counsels the         clause 3 AÜG-E validates the hiring out of employees for
    customer but is not willing to leave his actual company. A      those cases where an employment is existent between the
    problem arising in this context is that the time limit starts   lending company and the respective employee. Infringements
    with the employee’s start of work at the customer without       against this prohibition will be punished under § 16para 1 No.
    the employee knowing it. In cases where the temporary           1b AÜG-E with a fine of 30,000 € in each individual case.
    work is undetected or stealthy, the means of time limit cal-
    culation have not been clarified. Ultimately, for each cont-
    ract that bears the risk of being categorized as temporary
                                                                    Prohibition of employment of strike breakers
    work, it will be necessary to get a waiver of the employee.     Until now, the temporary employees had only been given the
    However, such an arrangement may lead to the verifying          right to refuse to work in case of a strike in the customer’s
    authority’s assumption that AÜG-rulings are being intenti-      company. The temporary employee should not be forced to
    onally circumvented.                                            become a strike breaker although he should still be given that
Employment & Pensions

option. During the last bargaining round the trade unions car-      Transition period – apparently generous
ried out a tightening of the strike breaker prohibition by a col-
lective bargaining agreement. Under that ruling those tempo-        As aforementioned the bill designates an apparently generous
rary work companies that applied the iGZ- or BAP-collective         transition period. Under Art. 7 of the draft bill it shall come
bargaining agreement could not hire out those employees to          into force on January 1st 2017. With regard to the calcula-
which the collective bargaining agreements had to be applied        tion of the maximum lease period only those periods shall be
during a strike at the customer’s company. As far as the tem-       taken into account, that have been occurred after the entry
porary employee agreed on the (temporarily) inapplicability         into force. Anyhow, in the personnel service industry there is
of the collective bargaining agreement but applicability of the     agreement that the 9 or 12 months-time limit for equal pay
equal treatment principle, the legal ruling of a simple right       basically equals a maximum lease period. Most customers
to refuse performance applies in favor of the employee. This        will neither be willing to do the extra administrative effort to
gap has especially been used – absolutely lawfully – in the         determine the comparable wages, nor will they pay the clearly
retail sector. The draft bill intends to anticipate this approach   higher wages resulting from the equal pay principle. Caution
by prohibiting the employment of an temporary employee as           must be exercised not to compare the respective maximum
long as (!) his company faces a labor dispute. The “as long         wages of the industry surcharge collective bargaining agree-
as”-element clarifies that only the affected departments are        ments with equal pay as the draft bill now suggests. While
meant to fall under this regulation.                                industry surcharges only relate to the regular remuneration,
                                                                    especially with regard to the capping system, and therefore
For the first time the strike breaker prohibition addresses the     seek conformity, the equal pay principle relates to any com-
customer but no more the staffing firm. In addition, it will be     ponents of remuneration, even benefits in kind. In this way
irrelevant in the future whether the equal treatment princi-        the customer’s payment systems as well as Christmas and
ple or a collective bargaining agreement of temporary work          performance bonuses and contributions for retirement pro-
applies to the employee. Every future breach of the prohibi-        visions might come into view although until now those have
tion will result in an infringement-fine of 500,000 € in each       not been taken into consideration by the industry surcharge
individual case (See § 16para 1 No. 8a AÜG-E). This mere            collective bargaining agreements. Hence, the equal pay prin-
unpleasant threat of punishment will be sufficient to stop the      ciple might lead to a major increase in price for temporary
employment of strike breakers in the future.                        work in numerous sectors.
                                                                    A more restrictive distinction between service contracts
Integration of agency workers into ­                                and contracts for work
co-determination                                                    The consequences of the planned revisions will affect more
                                                                    than only the temporary employment industry. The differen-
Lately, the labor jurisdiction has gradually given up the           tiation between service contracts and contracts for work on
principle “agency worker vote, but aren’t included” (last BAG,      the one hand and temporary work employments shall become
court order of November 4th 2015 – 7 ABR 42/13) valid for           much easier. The identification of sham service contracts or
customer’s co-determination. Now the draft bill clarifies in        sham contracts of work shall be easier for the Main Customs
the envisaged § 14para 2 AÜG-E whether the temporary                Office. Additionally, the works council gets extended rights to
employees employed by the customer have to be taken into            obtain information. Every employment on the basis of service
account for the calculation of thresholds within the “Betriebs-     contracts or contracts of work might result in unintentional
verfassungsgesetz” (BetrVG) – the German Works Council              legal consequences.
Constitution Act – for example needed for the calculation
of the size of the works council, as well as with regard to
the right of co-determination for instance for the question         List of criteria for differentiation
whether a supervisory board has to include employee
                                                                    As part of the legislator’s efforts to make the circumvention
representatives. This is planned for the future no matter for
                                                                    of the rules for temporary employment more difficult, criteria
how long the temporary employee will be employed. Thus, the
                                                                    for the differentiation of temporary work contracts and ser-
ruling of a 3 months minimum lease period having been valid
                                                                    vice contracts or contracts for work shall be clearly defined.
before under the BetrVG would be obsolete. This would lead
                                                                    The differentiation will (still) decisively depend on the fact
to serious legal uncertainty alone with regard to the question
                                                                    whether the employee is integrated in the customer’s com-
of the relevant moment in time.
                                                                    pany and is subject to instructions. As the current jurisdiction
                                                                    states, this shall be carried out in form of a rating overall eval-
                                                                    uation with the following criteria:
Employment & Pensions

 List of criteria for differentiation

 > A contractor who may not choose his working hours or arrange the performance owed or choose his place of work calls for
 temporary employment. Because of the “or”-connection already one fulfilled negative criterion is supposed to be sufficient. The
 requirement of arranging the owed performance by oneself is absolutely incomprehensible. After all, every contractor owes a
 performance as agreed on in a contract before. Hence, the performance can never be arranged freely. This could only refer to a
 freedom with regards to the organizational-technical arrangement of performance.

 > An additional negative criterion is fulfilled where the contractor performs at the premises of the other. This will hit classical services
 such as security guards, cleaning businesses, caretaker services and some IT-services marrow-deep.

 > A contract of work or services contract does not exist where the contractor regularly uses means of the other in order to perform.
 Particularly industrial services will be on the test bench due to the fact that mostly the use of the customer’s facilities and tools
 becomes necessary in order to perform.

 > In accordance with the current jurisdiction a capacity as employee and consequently a temporary employment exists when
 performance is based on job-sharing, thus in cooperation with someone who was engaged by someone else. This includes job-sharing
 with the customer’s employees as well as with third persons such as other freelancers.

 > The 5/6-principle used for identification of an economical freelancer during the status check under the laws of social security,
 hence the fact that the contractor exclusively or mainly works for another person, is a prospective criterion for the distinction between
 service contracts/contracts for work and temporary work. But the question of the scope of performance does not relate to the
 qualification as a contract for work etc. in terms of content. The Federal Ministry of Labor seems to give precedence to the wish for
 interference in any possibilities of flight from collective bargaining agreements over a comprehensible legal systematic reform.

 > The fact that a contractor does not maintain his own operational organization in order to perform shall be an argument against
 a service contract or a contract for work. Freelancer or interim manager who as know-how-workers use quasi nothing but their
 experience and special knowledge will be faced mainly by this criterion.

 > In the future contracts for work shall – completely contrary to the system – with regard to the distinction of the (where applicable
 unauthorized) temporary work be given an advantage compared to service contracts. This is because a performance directed towards
 a production or determined work results is to speak against temporary work in the future. Naturally, this is not the case in classic
 service sectors, for instance guarding or certain IT-services.

 > The most concrete one is the last designated criterion of the draft bill, under which more likely temporary work exists when the
 contractor does not provide warranty for the results of his work. Merely regarding the reference to the result again shown in the
 wording of the draft bill follow-up questions arise concerning the customer relationship designed as a service contract for which no
 warranty can be given in the result.

Systematically these criteria shall be included into the law by a new § 611a BGB-E with the title “Typical duties under a
contract of employment”. Hence, the Federal Ministry pretends to sort out the difference between temporary employ-
ment on the one hand and service contracts or contracts for work on the other hand by these requirements. In fact, it
aims for a limitation of employing freelancer, self-employed people and interim managers, without meeting the approval
of the official justification.
The relation between the criteria to each other has not been clarified by the legislator. Thus, the criteria are assigned
an equal status without a decision on how far they have to speak for one alternative in order to get to a legally binding
classification. The long discussed effect of assumption, under which the fulfillment of a certain amount of criteria would
have been to speak for one kind of contract, has not been included. In the end this attempt to standardize a list of criteria
is no real profit. Either the criteria have been used by the jurisdiction before or they are unsuitable for the question of
differentiation.
Employment & Pensions

Presumption of conformity of a status check                       Increase of the works council’s right to obtain
under the laws of social security                                 information
                                                                  With regard to the worker participation more extensive
In contrast, the draft bill designates an effect of assumption
                                                                  demands of the trade unions for an enhancement of real par-
in favor of the German Pension Insurance and in the end
                                                                  ticipation in settling for service contracts and contracts for
it is highly dubious whether it falls within the constitution.
                                                                  work have been left out of consideration. The draft bill leaves
The opinion about social security insurance matters of the
                                                                  it at an extension of the works council‘s sole rights to obtain
German Pension Insurance whether a person qualifies as an
                                                                  information (§§ 80 para 2, 92 para 1 BetrVG). The person-
employee paying mandatory social security contributions or
                                                                  nel measures planned by an employer and being subject to
as self-employed is supposed to impact the classification
                                                                  the works council‘s right to obtain early information will also
under labor law. In this way the Main Customs Office is to
                                                                  include persons that are not employed by the employer in the
be given easier ways of testing and documentation. The
                                                                  future. Regarding those persons, the scheduled tasks, time-
main customs office can see to it that the German Pension
                                                                  scale, planned work place and relevant contractual basis have
Insurance carries out a status check and classifies a person
                                                                  to be communicated to the works council.
as self-employed or as an employee.
                                                                  But with this information a works council still only has the
This is ludicrous for several reasons. For one thing, an          option to interpret contracts as direct employment or tem-
institution (= the social insurance carrier) that has its own     porary work in order to afterwards claim their right of co-de-
interest in the result of the status check (= its own social      termination under § 99 Sec. 1 BetrVG. Whether § 99 Sec. 1
insurance contributions), is rendered an independent testing      BetrVG applies or not is also subject to judicial examination.
instance. And for another, the separation of administration       Therefore, the engagement of companies for work and ser-
and jurisdiction in a question concerning labor law and           vices generally remains being free of co-determination.
therefore civil law is being abolished. At last, with regard to
the legal quality of such status checks of the German Pension
Insurance it is clarified that the issue of the employee status   Conclusion
would be left to chance. Since apparently it has escaped          The draft bill has a serious imbalance. While established
without any practical relevance, this system should vanish        employments for temporary work that are covered by col-
soon into the ministry’s drawer.                                  lective bargaining agreements will be considerably restricted,
                                                                  contracts for work for the purpose of wage dumping will
The Federal Minister of Labor’s failed its actual objective to    keep being feasible. The Main Customs Office are not given
curb the existence of contracts for work with low wages by        any measures in order to help them revealing cases of abuse.
setting up the effect of assumption in favor of the status        Hence, this draft bill would involve a redirection from tempo-
check under the laws of social security. Those cases will         rary work to the use of (sham) contracts for work. The ques-
always contain an employment for which mandatory social           tion remains open whether this is intended by the legislator.
security contributions have to be paid, so that the German
Pension Insurance will not be able to contribute to the
distinction between service contracts or contracts for work
and temporary work.
Employment & Pensions

  The team
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  the laws of social security, especially with regard to negotiations and design of collective bargaining agreements
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  management, freelancer, service contracts / contracts for work) and assists our clients with restructuring, the
  commission of external staff and the connected outsourcing of operational departments.

  In this range of topics we highly specialized consult staffing firms, IT/engineering companies and companies of the
  logistics sector as well as hospitals. Additionally, we strategically consult large enterprises with regard to cases on
  collective labor law and social security law.

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  Frankfurt                                                               Düsseldorf                                                        Düsseldorf
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Europe > Middle East > Asia                                                                                                                                                         taylorwessing.com
© Taylor Wessing LLP 2015
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