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the general principles of the right in EU decrees.

The general principles of the right represent a special kind of rules of law of EU. Proceeding from positions of the Contract on EU, for the purposes pravoprimenenija there is no accurately worked hierarchy of forms of the right, and EU Court gives the widest interpretation of the powers in sphere normotvorchestva and EU sources of law.

It is possible to allocate the general principles of the right in separate group of norms as character and value of the given rules of law in practice of Court of EU has special value. What is understood as the general principles of the right of EU? It «the concentrated expression of the most important intrinsic lines and the values peculiar to the given legal system» ’ 18.

In articles of incorporation there is a mention of the general principles of the right. Item 6 of the Contract on the European Union defines the concept maintenance «right principles, the general for member states"as"principles of freedom, democracy, respect of human rights and fundamental freedoms, and also right dominations», and also «the general principles of the right of Communities"as"fundamental laws of the person as they are guaranteed by the European convention on protection of human rights and fundamental freedoms..., and as they follow from the general constitutional traditions of member states» ”’. Thus, articles of incorporation understand the general as« the general principles of the right »for member states the constitutional principles of the right, and also the principles constituting a basis of a lawful state. Practice of Court of the European Communities totals a large quantity of affairs in which the general principles of the right of EU have been formulated. Wide interpretation of concept «the general principles of the right» EU Court has allowed to create difficult system remedial and financially-legal

The European right, under the editorship of L.M.Entipa. - M, 2000. - p. 92.

* \'* the Consolidated Text of the Contract on the European Union and Contracts on establishment of the European Community, item 6 of the Contract on the European Union / the European right, under the editorship of L.M.Entina. - M, 2000. - p. 528.

Guarantees of observance of the right of Communities, and also human rights. EU court in the decision on business Internationale Handelsgesellschaft [100] also has specified in functions of the general principles of the right in the Community law and order: “to promote formation of the such... Political and the legislative ground, the general for member states from which via a case law there is a Community unwritten law”. Within the limits of this system the Court has developed variety of principles which are applied by EU Court in the pravoprimenitelnoj to practice on a level with Articles of incorporation, constituting a part of "the European constitutional law» about which so some experts in the field of the European right [101] often speak.

The basic concepts developed by Court of EU, it is possible to name legal unity of EU, an autonomy, direct action, leadership, proportionality, subsidiarnost.

The concept of legal unity has been created at the very beginning of activity of Court of EU necessity of the statement of legal unity of three communities was which purpose, complementarity of contracts and the rules of law operating in each of Communities.

According to the given concept interpretation and application of any Contract should be carried out taking into account others. As the decision in which has found the definitive fastening of this principle, it is possible to name Business A. V. ECSC High Authority [102]. Also it is possible to mention Business v. Luxembourg in which the Court has developed the given concept, having added conclusions on business 27/59 [103]. Subsequently with signing of the Contract on merge the given concept has lost the urgency, however, its occurrence has served as the first successful experience normotvorchestva EU Vessels in sphere of the general principles of the right of Communities.

In Business Costa/Enel [104 [105] Court of EU has addressed for the first time to a question on character of the right of EU. In this business was, as consider many специалисты123, the concept of an autonomy of the right of EU is formulated. Its essence consists that as EU right possesses special character and does not depend on international law and legal acts of member states, national bodies have not the right to interpret EU right. The concept of the supremance of law of EU formulates one of main principles of the right of EU. This concept has shown, how much huge role is played by Court of EU in the course of integration into Europe. Formulated in already mentioned Business Costa/ENEL the principle of the supremance of law of EU has been confirmed and developed subsequently in Business Simmenthal-II [106]. The leadership concept is based on a recognition of the special nature of the right of EU and the powers delegated by member states to Community. From here a presumption of illegality of the legal acts accepted by member states and contradicting the right of EU. «The concept of the supremance of law of EU, fixing leadership of all set of the right of EU» [107] has been developed and added in Business Internationale Handelsgesellzchaft [108], and also in a number of other affairs [109]. The principle of direct action of the right of EU, along with a leadership principle, is also one of central as mentions bases of the right of Community. For this reason it is necessary to consider in details how the Court has formulated this principle.

Precedent in which the principle of direct action has been formulated, known business Van Gend en Loos [110] is.

The essence of the matter consisted that the customs service of the Netherlands by means of change of classification imported by transport company Van Gend cn Loos the goods actually has increased size of duties coming under to payment that contradicted item 12 of the Contract on EUROPEAN ECONOMIC COMMUNITY. The company has addressed with the claim in the specialised court of justice, authorised to assort the disputes connected with the customs duties and excises.

The given degree of jurisdiction has addressed in Court of EU with two questions within the limits of pre-judicial procedure. The basic question was following: whether «article 12 of the Contract about EUROPEAN ECONOMIC COMMUNITY has direct action in territory of member states», i.e. whether citizens of member states have to address in court for protection of the rights given by given article of the Contract.

It is remarkable, that the remarks on business have been presented by the governments of Belgium and the Netherlands. Proving the position, they insisted, that the brought attention to the question is exclusively a subject of regulation of a constitutional law of each of member states as which can or to recognise a primacy of international law over national (which part the Contract on EUROPEAN ECONOMIC COMMUNITY) is, or not to recognise.

As one would expect, the Court has disagreed with similar treatment of character of the Contract on EUROPEAN ECONOMIC COMMUNITY and has specified, that the Contract on EUROPEAN ECONOMIC COMMUNITY represents more, rather than the parol contract creating the rights and duties for the signed states. The court has underlined, that to such conclusion it is possible to come, having analysed the Contract preamble in which it is spoken about «more and more close union of the people». The court has come to conclusion, that the given position of the Contract which represents something bolshee, rather than an international law part, creates the rights and duties for citizens of member states as it follows from special character of the Contract on EUROPEAN ECONOMIC COMMUNITY and the Community to which member states have transferred a part of the powers (and in sphere of customs regulation of trade between member states, in particular).

Consequences of removal of the similar decision EU Court are difficult for overestimating. Without decision Van Gend en Loos and concepts of direct action it is impossible to imagine the modern level of integration reached by Community. The way has been found not only to overcome distinctions of konstitutsionno-legal character between member states. But also a way to make application and action of the Contract on EUROPEAN ECONOMIC COMMUNITY in the right of member states the most effective that could not achieve without a recognition of the direct rights and duties of the private persons following from positions of the Contract on EUROPEAN ECONOMIC COMMUNITY [111 [112]. EU court has simultaneously developed system of criteria to which there should correspond the norm containing in the Contract. So article 121зг Contracts, according to the decree, does not demand any special measures from member states on implementatsii in national the legislation as meets following requirements: first, the accurate and unconditional formulation; Secondly, concerning given article there are no reservations from member states; and thirdly, action of given article does not depend on actions of member states on implementatsii it in the national legislation.

The principle of direct action and criteria of its application have received the further development in a number of the subsequent affairs, among which v. ENEL [113], v. Belgium [114 [115]. So, for example, in business Reyners the Court used the concept of direct action to give to a principle not to discrimination concerning freedom of establishment force of the norm directly creating the rights and duties for private persons. It is necessary to notice especially, that the Court in business Reyners (as well as in business v. ENEL) has tried to assign to member states wider obligations that dispersed from the decision which has been taken out on business Van Gend en Loos. The tendency in the Court doctrine to more and more conditional application of criteria, conformity which was necessary for giving for position of Contracts of direct action, was showed and in business v. Sabcna133. A principle of equal payment for men and women for the equal or equivalent work stated in the item 119 [116] Contracts on the European Community, hardly probable corresponds to the requirement of clearness and certainty of the formulation about which there is a speech in Business Van Gend en Loos. To those nanoseconds less given article of the Contract possesses direct action.

Some authors, for example, Matjajzen [117], one of known Dutch experts in the field of EU right, are inclined to separate the concept of direct action from direct application, considering, that direct application, i.e. the right of the private person to address in national court with the requirement of execution of position of the Contract on EU, takes place only in a case when such position creates the rights and duties for private persons.

Such representation about a principle of direct action, apparently, conflicts to the approach of Court of EU, stated in the decision on business Van Gend en Loos. After all position of the right of EU, creating the direct rights and duties, can be protected both the interested person, and other person, wishing to achieve judicially realisation of the rights of the person in which relation the norm possessing direct action operates. About it, in particular, it is spoken in the decision on business Verholen [118].

The decision on business Van Gend en Loos has brought an attention to the question also about direct action of other certificates of Community, rather than articles of incorporation. First of all, speech, of course, went in regulations and instructions, and also the international agreements concluded by Community. As to regulations, the Contract on EU establishment provided in article 249, that «regulations... Comes under to direct application in all member states» [119]. It has been confirmed, in particular, by EU decree on business v. Italy [120]. The court has specified, that «the regulations possess direct action in all member states, and it is possible to consider as the moment of its introduction into force date of its publication in Journal Officiel».

Both concerning regulations, and concerning the decisions accepted by Council of EU, there were no disputes on direct action. The decisions of Council accepted concerning separate member states, according to article 249 of the Contract about EU «are obligatory in all components for those to whom it is addressed», i.e. possesses direct action without which, according to EU decree on business Franz Grad [121], efficiency (L’effet utile) decisions would be substantially lowered.

The separate problem is represented by a principle of direct action concerning instructions. In article 249 does not contain any instructions on direct action. Contract position speaks only about a binding force of the instruction concerning the purposes, expected result. Moreover, the Contract on EU establishment provides a special order implementatsii instructions in the national legislation. Abundantly clear, that the instruction, demanding from member states achievements of the purposes or expected result, hardly can correspond to such criteria of direct action stated in business Van Gend en Loos, as «the accurate and unconditional formulation». Thus the Court in the practice has faced a number of cases in which member states, abusing the powers in the relation implementatsii instructions, conditioned at which achievement of "expected result» became hardly probable possible. It was clear, that with a view of efficiency and uniform application of instructions, it was necessary to recognise the right of private persons to challenge action of member states in the relation implementatsii instructions [122 [123]. The decision in which EU Court has addressed to a problem of direct action of instructions, business Van Duyn142 is. Business consisted that Ivonn van Dyojn, the citizen of the Netherlands, was refused from the authorities of the Great Britain in entrance as it has received the offer to go to work from Church Sajentologii which activity of the power of the Great Britain considered socially harmful. Having addressed in High Court of the Great Britain, Van Dyojn has specified, that similar refusal outrages on free movement of the workers, guaranteed by item 39 of the Contract on establishment of EU and in particular the Instruction № 64/221. The high Court has addressed in Court of EU with some question among which there was also a question on direct action of the specified instruction. The court in the decision has come to conclusion, that «in a case when the Community has assigned certain duties to member states..., efficiency of the instruction would be substantially lowered, if private persons do not have possibility to protect the rights guaranteed by the instruction, in national Court and if courts do not have the right to apply the instruction as the Community source of law» [124].

Concerning direct action of instructions the Court has specified in a number of compulsory conditions. First, the instruction should contain accurate, clear and "complete" (complete) the obligation. Secondly, there should pass necessarily time which has been taken away on implementatsiju to the national authorities. Thirdly, the instruction should create directly is right also duties for private persons. In a case if the instruction corresponds to these three criteria, it is possible to speak about its direct action. It is necessary to notice the truth, that EU Court has made subsequently the decision, actually cancelled the third criterion. The Court has accepted such decision in business Gropkrotzenburg [125] according to which the instructions which are not creating the direct rights and duties for private persons, can have less than those nanoseconds direct actions in territory of member states. In business Gropkrotzenburg the Commission has submitted the claim against Germany, which not implementirovala properly positions of one of instructions in sphere of the ecological right. The representative of Germany at hearings in EU Court has declared, that this instruction does not create the rights and duties for private persons. The court in the decision has refused to support a position of Germany and has actually cancelled action of the third criterion.

The court in aspiration to give the maximum protection to the rights of the private persons resulting from positions of instructions, has gone further and in the decision on business Ratti [126] has specified, that member states, in a case if the instruction not implementirovana in the national legislation, have no right to refer in court on contradicting the right of Communities of position of the legislation or the requirement of the internal public policy.

Thus, the Court has extended principle action to all instructions, term implementatsii which has expired. Thus the Court both in business Ratti and in business Marshall [127 [128] especially underlined distinction between the regulations and the instruction. The court has specified, that the Instruction, according to article 249 of the Contract about EU creation, is addressed each member state, is obligatory for member states, instead of for private persons and possesses direct action only after the expiry of the term provided for implementatsii in the national legislation. In business Facini Dori \' 4* Court has underlined also, that the instruction cannot have direct action concerning private persons in a case if member state not implementirovalo the instruction before the expiry of the term. Direct action as has specified Court, is a certain sort "sanction" against member states which will be obliged to pay damages to the suffered persons. Similar order of compensation of harm member states in case the instruction was implementirovana not in time or not properly, has been developed by Court in business Frankovich [129].

The court also has extended a principle of direct action to international agreements. According to article 281 and 300 Contracts on EU creation, the Community has the status of the legal person and has the right to enter into agreements, including international, with the states and persons outside of Community (item 133 and 310). The court in business ERTA [130 [131] has specified, that at Community besides "direct" powers, there are meant powers in which force for achievement of the purposes specified in the Contract, the Community has the right to conclude international agreements on all spectrum of the powers given to Community According to the Contract on EU. The questions connected with direct action of international agreements, Court has considered in Business International Fruit Company ’*1. The claimant has addressed in court in the Netherlands with the requirement of revision of the decision of the Dutch authorities about refusal in licensing for import of apples from the third countries. The claimant referred to the contradiction between certificates of Community and the international agreement - GATT. The court in the Netherlands has made an inquiry in EU Court about, whether has national court of power to solve a question on the validity of the international agreement and Community certificates. EU court has specified, that GATT does not create the rights and duties for private persons and therefore does not possess direct action as mismatches a number of requirements. Thus, EU Court has formulated a number of necessary requirements to which should correspond the international agreement concluded within the limits of jurisdiction of Community. First, it is the accurate and unconditional formulation of the purposes of the agreement. Secondly, it «legal integrity» obligations that should mean legal definiteness uchtanavlivasmyh requirements. And in - the third, the agreement should not provide possibility of a unilateral exit from the agreement or possibility somehow to change volume of obligations of the state according to the agreement.

In the subsequent decisions, in particular, on business Kupferberg [132], the Court has applied the requirements developed by it in business International Fruit Company to giving of direct action to the agreement on free trade with Portugal, has underlined, that the given agreement contains accurate and unconditional formulations of obligations, and also that the agreement purpose is its direct application.

Subsequently the Court also recognised direct action of Lomejsky agreements, and also agreements on association with Turkey [133]. The principle of direct action plays a huge role for maintenance of the rights of private persons, and also for maintenance of efficiency and uniform application of rules of law of Community. The principle of direct action represents a vivid example of what role of an expert of Court of EU plays normotvorcheskom process in Community.

Fundamental laws concern fundamental principles of the right of EU and freedom of the person. EU court has formulated a principle of protection of human rights and fundamental freedoms long before its fastening in the Maastricht contract. As it was marked in the first paragraph of the present chapter, the Court originally recognised itself incompetent to solve a question on protection of human rights in Community. Then decisions ERT [134] and Rutili [135] in which the Court referred to positions of the Roman convention of 1950 have followed. As the question on protection of human rights in Community is closely closed with a question on the conflict of jurisdiction of Court of EU and the European Court under the human rights, the given question will be in details considered in the second paragraph of the third chapter where it will be a question of decisions of the European Court under human rights as a source of the European right. However it is necessary to tell the following in connection with principle action are sewn up human rights and fundamental freedoms: EU court watches observance of human rights and fundamental freedoms as they are an integral part of the general principles of the right of Community, but only in that volume in what questions of observance of human rights and fundamental freedoms in Community and member states are connected with obligations of member states and Communities according to Articles of incorporation and Certificates of Communities. So has formulated Court of EU sphere of application of a principle of protection of human rights and fundamental freedoms in the decision on business Cinethfeque [136 [137] [138].

Among principles it is right [139] EU applied by Court, it is necessary to allocate also other group of principles of the right concerning not so much to specificity of the European right, how many to «legal proceedings principles» [140] member states borrowed from konstitutsionno-legal traditions. One of them - a principle of urgency of action of the right of EU.

The given principle has been formulated in decisions on business Singer und SOhne [141]. Originally the Court has formulated it so: « If other is not provided, the norms supplementing acts, are applied to the future consequences of the situations arising before acceptance of these norms »[142]. Subsequently action of this principle has faded into the background, as bolshee value was got by a principle of lawful expectations which will be considered more low. The given principle subsequently a little corrected with a view of conformity to a principle of legal definiteness, has been developed by Court of EU for application in questions of the general organisation of the markets, regulations of separate sectors of economy in which the big role play the financial help, grants and privileges where the principle of lawful expectations is not applied. In details the principle of urgency of action of the right of EU has found in Business Tomadini [143], and also in a number of the subsequent affairs, for example, v. Commission [144] where EU Court has underlined, that the principle of urgency of action of the right of EU concerns that moment, when the rule of law

EU begins will be applied to legal relation which has been settled according to other norm. Thus it is necessary to distinguish action of the given principle from concept of return action when the rule of law is applied retrospektivno, and not just from the moment of authorisation.

Also it is necessary to mention a principle cancellation of the retroactive effect of certificates of Community, according to which for lack of position about other, having lawful character, certificates of Community of the retroactive effect not имеют16*. The given principle has been formulated in a number of decisions, for example, Kurt Simers [145] or Grassi [146].

It is necessary for one of the major principles of the right of EU to name a principle of lawful expectations. Its essence consists that Communities should not deceive lawful expectations of parties in interest which represent reasonable expectations of approach of legal consequences according to rules of law of Communities. Thus expectations should be recognised by reasonable and diligent.

One of the first decisions in whom EU Court has formulated the given principle - v. Council [147]. The commission has addressed in Court with the claim about cancellation of the decision of Council of EU about introduction of a new order of a payment of employees of EU. The new decision has cancelled the previous certificate of the Council which period of validity has not expired, however the new certificate should be accepted after the termination of properly spent round of negotiations. However it it has not been made. The court has cancelled the new decision of Council on the basis of that lawful expectations of employees have not been justified.

Among other judgements in which has received reflexion a principle of lawful expectations, it is possible to name the decision on business Deuka [148], and also Dekker [149] and Rakke [150]. The principle of lawful expectations is applied by Court widely enough. Practice of last years shows, that the basic sphere of application of the given principle are the disputes connected with default by Community or member states of the obligations from Contracts or other certificates of Community.

The court in the practice also has defined cases as which it is possible to consider as exceptions of action of a principle of lawful expectations. It is possible to consider as an example of a similar exception business IRKA170. The court has refused to extend regulations action to the transactions made for 15 days prior to its introduction into force. EU court has specified, that withdrawals from a principle of lawful expectations take place in the event that it is necessary for an object in view and is not reflected in due respect for lawful expectations of interested persons.

Among other principles to name right, EU developed by Court, it is possible a principle of equality, justice, proportionality. As it has appeared, EU Court considers the given principles as interconnected. The principle nediskriminatsii or equalities in practice of Court of EU has been developed on the basis of articles 12 and 13 Contracts on creation of EU forbidding discrimination on the basis of a floor, race, to a national identity or other signs. The basic decisions in which the principle nediskriminatsii has been developed, it is possible to name decisions Rita Frilli171, and also v. Commission172. EU court has specified, that granting of equal possibilities is the legal base of the General market. The court also has specified, that the equality principle is closely connected with a justice principle as as a result of their application take place the same result.

As to a proportionality principle it as has specified Court in the decision on business Schlater173 and Schmitz ’ 74, concerns necessity to use commensurable means for achievement of definite purposes. Also in business v. Germany17* the Court has developed a number of criteria for definition of "proportionality" of a used measure for object in view achievement. In - the first, the given measure should represent a corresponding and effective way of achievement of the lawful purpose. Secondly, the given measure should be necessary, i.e. there is no other alternative having less restrictive character, and thirdly, the negative effect from application of the given measure of nanosecond is represented excessive in comparison with the purpose. [151 [152]

In the normotvorcheskoj to practice EU Court also has developed a principle of freedom of activity of trade unions [153] and legal definiteness [154]. The principle of legal definiteness represents one of most general principles of the right of EU and in the doctrine of Court of EU is closely connected with a principle of return action and lawful expectations [155]. Its essence consists in inadmissibility of the retroactive effect of accepted certificates of Community and protection of lawful expectations and the interests provided by certificates and contracts of Community.

In turn the proportionality principle cannot be considered in a separation from a principle subsidiarnosti. However the principle subsidiarnosti, despite position of Articles of incorporation (item 1 (2) Contracts on the European Union), the Report to the Amsterdam Contract about subsidiarnosti and proportionality, the Document Edinburgsky meetings of the Council of Europe of 1992, and also the report of the European Commission on «the best lawmaking» from 2000, a principle subsidiarnosti remains indistinct enough in application. The basic problem on a way of high-grade application of the given principle remains nerazgranichennost powers of EU and member states. And taking into consideration that fact, that in addition to specialised articles, according to which EU has powers to be engaged normotvorchestvom in separate areas (the general agricultural policy, a competition, etc.) There is also article 308 which does not give possibility more accurately to define border of powers of EU and member states and consequently begins problematic to define, when «the purposes of the offered normative act can be effectively reached at level of member states» [156].

On the other hand, it is very important to pay attention to those principles which EU Court has developed on purpose to create system of legal, judicial guarantees of appropriate execution of certificates of Community and decision-making administratively, that can have negative consequences for realisation by private persons of the rights fixed in Articles of incorporation and other certificates of Community.

EU court has played the basic role in formation of system of guarantees of observance of the rights of private persons in administrative process in Community. For this purpose the Court has developed a principle of "appropriate management» which includes also a conscientiousness principle, the right to be heard (or audi alteram partem) and the right to access to the information. As a result private persons have acquired the right to judicial revision of any administrative decision accepted with infringement of procedure. In the contract on EU creation one norm stated in article 190 of the Contract on EU in which the principle of obligatory validity and motivation of accepted decisions is fixed contains only. The principle of "appropriate management» is closely connected with more general principle of "leadership of the law» and in practice of Court of EU plays a criterion role natura hominum at definition of legality of the decisions which have been taken out administratively, i.e. in an order of usual activity of institutes of Community. At definition of the maintenance of a principle of "appropriate management» it is possible to use concept «abuse of authority and powers» which is used by Service European Ombudsmana [157]. «Diligent management» takes place when there are no bases to speak about «abuses of authority and powers»: «administrative errors and omissions, abusings the official position, negligence, infringements of procedure of decision-making, injustice, default of official duties, incompetence, discrimination, delay, a lack or refusal in information granting» [158].

One of the first affairs in whom EU Court has addressed to a principle of "appropriate management», business TRADAX [159] is. The claimant, addressing in Court, specified, that the Commission has ignored its request for granting of the information for those methods of calculation with which help duties on some imported products paid off. In Court the claimant referred also to principle infringement «appropriate management» as to it it has been given up in access right to the information. Though the Court also has given up in a legal investigation, in definition to them has been specified in necessity of observance of a principle of "appropriate management» in Commission activity. In a consequence the Court all applied a principle of "appropriate management» more widely. As an example it is possible to result business BEUC [160] in which the claimant referred to insufficient level transparentnosti to procedure of definition of countervailing duties by the Commission. In the given case the Court has defined the right to be heard (audi alteram partem) as a principle component of "appropriate management». In business v. Commission [161] Court has defined a principle of "appropriate management» and its components in that kind in what it is known now. The court has agreed that the Commission has not shown due attention to unfairly convicted in kartelnoj to practice to the companies, and has enacted, that Commission actions go in this case to a cut with a principle of "appropriate management». In business v. Commission [162] Court of EU has defined, that the principle of "conscientiousness" which is a part of a principle of "appropriate management», means acceptance by executive organ of all necessary measures for observance of the rights of interested persons.

Subsequently the principle of "appropriate management» has turned to the reliable mechanism of judicial protection of the rights of fair persons from "inadequate", i.e. contradicting the established method of adoption of the decision, Commission actions. First of all, it is necessary to note decisions on business PVC Cartel, BASF AG and v. Commission [163], Gebrilder Lorenz v. Germany [164], Deutsche Bahn v. Commission [165] etc.

Summing up told in the present paragraph, it is necessary to tell, that EU Court in the decisions has developed the whole system of principles of the right of Community. Normotvorchesky activity EU Court in sphere of creation of the general principles of the right has allowed to provide as much as possible effective and uniform application of the right of Communities, and also to create necessary guarantees in administrative process of Community.

2.1.2.

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A source: Tihonovetsky Dmitriy Sergeevich. in system of sources of the European right. The dissertation on competition of a scientific degree of the master of laws. Moscow -. 2004

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