Council Regulation (EU) 2022/2309 of 25 November 2022 concerning restrictive measures in view of the situation in Haiti

Article 1

For the purposes of this Regulation, the following definitions apply:

(a) ‘claim’ means any claim, whether asserted by legal proceedings or not, made before or after 28 November 2022, under or in connection with a contract or transaction, and in particular:

i. a claim for performance of any obligation arising under or in connection with a contract or transaction;

ii. a claim for extension or payment of a bond, financial guarantee or indemnity of whatever form;

iii. a claim for compensation in respect of a contract or transaction;

iv. a counterclaim;

v. a claim for the recognition or enforcement, including by the procedure of exequatur, of a judgment, an arbitration award or an equivalent decision, wherever made or given;

(b) ‘contract or transaction’ means any transaction of whatever form and whatever the applicable law, whether comprising one or more contracts or similar obligations made between the same or different parties; for this purpose ‘contract’ includes a bond, guarantee or indemnity, particularly a financial guarantee or financial indemnity, and credit, whether legally independent or not, as well as any related provision arising under, or in connection with, the transaction;

(c) ‘competent authorities’ means the competent authorities of the Member States as identified on the websites listed in Annex II;

(d) ‘economic resources’ means assets of every kind, whether tangible or intangible, movable or immovable, which are not funds, but which may be used to obtain funds, goods or services;

(e) ‘freezing of economic resources’ means preventing the use of economic resources to obtain funds, goods or services in any way, including, but not limited to, by selling, hiring or mortgaging them;

(f) ‘freezing of funds’ means preventing any move, transfer, alteration, use of, access to, or dealing with funds in any way that would result in any change in their volume, amount, location, ownership, possession, character, destination or other change that would enable the funds to be used, including portfolio management;

(g) ‘funds’ means financial assets and benefits of every kind, including, but not limited to:

i. cash, cheques, claims on money, drafts, money orders and other payment instruments;

ii. deposits with financial institutions or other entities, balances on accounts, debts and debt obligations;

iii. publicly and privately-traded securities and debt instruments, including stocks and shares, certificates representing securities, bonds, notes, warrants, debentures and derivative contracts;

iv. interest, dividends or other income on or value accruing from or generated by assets;

v. credit, right of set-off, guarantees, performance bonds or other financial commitments;

vi. letters of credit, bills of lading, bills of sale;

vii. documents showing evidence of an interest in funds or financial resources;

(h)Sanctions Committee’ means the Committee of the United Nations Security Council established pursuant to paragraph 19 of UNSCR 2653 (2022);

(i) ‘technical assistance’ means any technical support related to repairs, development, manufacture, assembly, testing, maintenance or any other technical service, and may take forms such as instruction, advice, training, transmission of working knowledge or skills or consulting services, including verbal forms of assistance;

(j) ‘territory of the Union’ means the territories of the Member States to which the Treaty is applicable, under the conditions laid down in the Treaty, including their airspace.

Article 2

1.   It shall be prohibited to:

(a)provide technical assistance related to the provision, manufacture, maintenance and use of small arms and light weapons, their components and accessories, and ammunition as set out in the Annex to Council Decision (CFSP) 2021/38 (*1), as well as firearms, their parts and essential components, and ammunition as defined in Council Regulation (EU) No 258/2012 (*2), directly or indirectly to any natural or legal person, entity or body in, or for use in, Haiti;

(b)provide financing or financial assistance, including in particular grants, loans and export credit insurance, as well as insurance and reinsurance, for any sale, supply, transfer or export of items mentioned in point (a), or for the provision of related technical assistance, directly or indirectly to any natural or legal person, entity or body in, or for use in, Haiti.

2.   Paragraph 1 shall not apply to the provision of technical assistance, financing or financial assistance as referred to in paragraph 1, points (a) and (b), to the UN or a UN-authorised mission or to a security unit that operates under the command of the Government of Haiti, intended to be used by or in coordination with those entities and intended solely to further the objectives of peace and stability in Haiti.

Article 3

1.   All funds and economic resources belonging to, owned, held or controlled, directly or indirectly, by any natural or legal person, entity or body listed in Annex I or Annex Ia shall be frozen.

2.   No funds or economic resources shall be made available, directly or indirectly, to or for the benefit of natural or legal persons, entities or bodies listed in Annex I or Annex Ia.

Article 4

1.   Annex I shall include natural or legal persons, entities and bodies identified by the United Nations Security Council (the ‘Security Council’) or the Sanctions Committee as being responsible for or complicit in, or having engaged in, directly or indirectly, actions that threaten the peace, security or stability of Haiti, including but not limited to natural or legal persons having threatened the peace, security or stability of Haiti through any of the following actions:

(a) engaging in, directly or indirectly, or supporting criminal activities and violence involving armed groups and criminal networks that promote violence, including forcible recruitment of children by such groups and networks, kidnappings, trafficking in persons and the smuggling of migrants, and homicides and sexual and gender-based violence;

(b) supporting illicit trafficking and diversion of arms and related materiel, or illicit financial flows related thereto;

(c) acting for or on behalf of or at the direction of or otherwise supporting or financing a person or entity designated in connection with the activity described in points (a) and (b), including through the direct or indirect use of the proceeds from organised crime, including proceeds from illicit production and trafficking in drugs and their precursors originating in or transiting through Haiti, the trafficking in persons and the smuggling of migrants from Haiti or the smuggling and trafficking of arms to or from Haiti;

(d) acting in violation of the arms embargo established in paragraph 11 of UNSCR 2653 (2022), or as having directly or indirectly supplied, sold, or transferred to armed groups or criminal networks in Haiti, or as having been the recipient of, arms or any related materiel, or any technical advice, training or assistance, including financing and financial assistance, related to violent activities of armed groups or criminal networks in Haiti;

(e) planning, directing, or committing acts that violate international human rights law or acts that constitute human rights abuses, including those involving extrajudicial killing, including of women and children, and the commission of acts of violence, abduction, enforced disappearances or kidnappings for ransom in Haiti;

(f) planning, directing or committing acts involving sexual and gender-based violence, including rape and sexual slavery, in Haiti;

(g) obstructing delivery of humanitarian assistance to Haiti or access to, or distribution of, humanitarian assistance in Haiti;

(h) attacking personnel or premises of United Nations missions and operations in Haiti, or providing support for such attacks.

2.   Annex I shall include the grounds for the listing of natural or legal persons, entities or bodies concerned.

3.   Annex I shall include, where available, information provided by the Security Council or by the Sanctions Committee necessary to identify the natural or legal persons, entities or bodies concerned. With regard to natural persons, such information may include names including aliases, date and place of birth, nationality, passport and identity card numbers, gender, address, if known, and function or profession. With regard to legal persons, entities or bodies, such information may include names, place and date of registration, registration number and place of business. Annex I shall also include the date of designation by the Security Council or by the Sanctions Committee.

Article 4a

1.   Annex Ia shall include the natural or legal persons, entities or bodies designated by the Council that are: 

(a) responsible for or complicit in, or having engaged in, directly or indirectly, actions that threaten the peace, stability and security of Haiti, including: 

(i) engaging in, directly or indirectly, or supporting criminal activities and violence involving armed groups and criminal networks that promote violence, including forcible recruitment of children by such groups and networks, kidnappings, trafficking in persons and the smuggling of migrants, and homicides and sexual and gender-based violence;

(ii) supporting illicit trafficking and diversion of arms and related materiel, or illicit financial flows related thereto;

(iii) acting for or on behalf of or at the direction of, or otherwise supporting or financing, a person or entity designated in connection with the activity described in points (i) and (ii), including through the direct or indirect use of the proceeds from organised crime, including proceeds from illicit production and trafficking in drugs and their precursors originating in or transiting through Haiti, the trafficking in persons and the smuggling of migrants from Haiti, or the smuggling and trafficking of arms to or from Haiti;

(iv) acting in violation of the arms embargo, or having directly or indirectly supplied, sold or transferred to armed groups or criminal networks in Haiti, or having been the recipient of, arms or any related materiel, or any technical advice, training or assistance, including financing and financial assistance, related to violent activities of armed groups or criminal networks in Haiti;

(v) planning, directing or committing acts that violate international human rights law or acts that constitute human rights abuses, including those involving extrajudicial killing, including of women and children, and the commission of acts of violence, abduction, enforced disappearances or kidnappings for ransom in Haiti;

(vi) planning, directing or committing acts involving sexual and gender-based violence, including rape and sexual slavery, in Haiti;

(vii) obstructing the delivery of humanitarian assistance to Haiti or access to, or the distribution of, humanitarian assistance in Haiti;

(viii) attacking personnel or premises of Union delegations and Member State diplomatic missions and operations in Haiti, or providing support for such attacks; 

(b) undermining democracy or the rule of law in Haiti through serious financial misconduct concerning public funds or the unauthorised export of capital; or

(c) associated with natural or legal persons, entities or bodies designated under points (a) and (b). 

2.   Annex Ia shall include the grounds for listing the persons and entities referred to therein. 

3.   Annex Ia shall also contain, where available, the information necessary to identify the persons or entities concerned. With regard to natural persons, such information may include: names, including aliases; date and place of birth; nationality; passport and identity card numbers; gender; address, if known; and function or profession. With regard to entities, such information may include: names; place and date of registration; registration number; and place of business.

Article 5

Article 3(1) and (2) shall not apply to the making available of funds or economic resources necessary to ensure the timely delivery of humanitarian assistance or to support other activities that support basic human needs where such assistance and other activities are carried out by:

(a) the United Nations, including its programmes, funds and other entities and bodies, as well as its specialised agencies and related organisations;

(b) international organisations;

(c) humanitarian organisations having observer status with the United Nations General Assembly and members of those humanitarian organisations;

(d) bilaterally or multilaterally funded non-governmental organisations participating in the United Nations Humanitarian Response Plans, Refugee Response Plans, other United Nations appeals or humanitarian clusters coordinated by the United Nations Office for the Coordination of Humanitarian Affairs (OCHA);

(e) the employees, grantees, subsidiaries, or implementing partners of the entities mentioned in points (a) to (d) while and to the extent that they are acting in those capacities; or

(f) other appropriate other actors as determined by the Sanctions Committee as regard Annex I and by the Council as regards Annex Ia.

Article 6

1.   By way of derogation from Article 3, the competent authorities may authorise the release of certain frozen funds or economic resources, or the making available of certain funds or economic resources, under such conditions as they deem appropriate, after having determined that the funds or economic resources concerned are:

(a) necessary to satisfy the basic needs of natural or legal persons, entities or bodies listed in Annex I or Annex Ia, and dependent family members of such natural persons, including payments for food, rent or mortgage, medicines and medical treatment, taxes, insurance premiums and public utility charges;

(b) intended exclusively for the payment of reasonable professional fees or the reimbursement of incurred expenses associated with the provision of legal services;

(c) intended exclusively for payment of fees or service charges for routine holding or maintenance of frozen funds or economic resources,

where the authorisation concerns a natural or legal person, entity or body listed in Annex I and provided that the competent authority of the Member State concerned has notified the Sanctions Committee of that determination and of its intention to grant an authorisation, and in the absence of a negative decision by the Sanctions Committee within 5 working days of such notification.

2.   By way of derogation from Article 3, the competent authorities of the Member States may authorise the release of certain frozen funds or economic resources, or the making available of certain funds or economic resources, under such conditions as they deem appropriate, after having determined that the funds or economic resources concerned are necessary for extraordinary expenses, provided that:

(a) where the authorisation concerns a natural or legal person, entity or body listed in Annex I, such determination has been notified to the Sanctions Committee by the competent authority of the Member State concerned and that the determination has been approved by that Committee; and

(b) where the authorisation concerns a natural or legal person, entity or body listed in Annex Ia, the Member State concerned has notified other Member States and the Commission of the grounds on which it considers that a specific authorisation should be granted, at least 2 weeks prior to granting the authorisation.

3.   The Member State concerned shall inform the other Member States and the Commission of any authorisation granted under this Article within 2 weeks of the authorisation.

Article 6a

1.   Without prejudice to Article 5, by way of derogation from Article 3(1) and (2), and with regard to a natural or legal person, entity or body listed in Annex Ia, the competent authorities may authorise the release of certain frozen funds or economic resources, or the making available of certain funds or economic resources, under such conditions as they deem appropriate, after having determined that the provision of such funds or economic resources is necessary for the timely delivery of humanitarian assistance or to support other activities that support basic human needs.

2.   The Member State concerned shall inform the other Member States and the Commission of any authorisation granted under paragraph 1 within 2 weeks of the authorisation.

Article 6b

1.   By way of derogation from Article 3, and with regard to a natural or legal person, entity or body listed in Annex Ia, the competent authorities of the Member States may authorise the release of certain frozen funds or economic resources, or the making available of certain funds or economic resources, under such conditions as they deem appropriate, after having determined that the funds or economic resources concerned are to be paid into or from an account of a diplomatic or consular mission or an international organisation enjoying immunities in accordance with international law, insofar as such payments are intended to be used for official purposes of the diplomatic or consular mission or international organisation.

2.   The Member State concerned shall inform the other Member States and the Commission of any authorisation granted under paragraph 1 within 2 weeks of the authorisation.

Article 7

1.   By way of derogation from Article 3(1), the competent authorities of the Member States may authorise the release of certain frozen funds or economic resources for natural or legal persons, entities or bodies listed in Annex I or Annex Ia, or the making available of certain funds or economic resources for natural or legal persons, entities or bodies listed in Annex I or Annex Ia, if the following conditions are met:

(a) the funds or economic resources are the subject of:

(i) for a natural or legal person, entity or body listed in Annex I, a judicial, administrative or arbitral decision established prior to the date on which the natural or legal person, entity or body referred to in Article 4 was included in Annex I, or of a judicial, administrative or arbitral lien rendered prior to that date;

(ii) for a natural or legal person, entity or body listed in Annex Ia, an arbitral decision rendered prior to the date on which the natural or legal person, entity or body referred to in Article 4a was included in Annex Ia, or of a judicial or administrative decision rendered in the Union, or a judicial decision enforceable in the Member State concerned, prior to or after that date;

(b) the funds or economic resources will be used exclusively to satisfy claims secured by a decision as referred to in point (a) or recognised as valid in such a decision, within the limits set by applicable laws and regulations governing the rights of persons having such claims;

(c) the decision or lien is not for the benefit of a natural or legal person, entity or body listed in Annex I or Annex Ia;

(d) the recognition of the decision or lien is not contrary to public policy in the Member State concerned; and

(e) for a natural or legal person, entity or body listed in Annex I, the Sanctions Committee has been notified by the Member State of the decision or lien.

2.   The Member State concerned shall inform the other Member States and the Commission of any authorisation granted under paragraph 1 within 2 weeks of the authorisation.

Article 8

1.   By way of derogation from Article 3(1) and provided that a payment by a natural or legal person, entity or body listed in Annex I or Annex Ia is due under a contract or agreement that was concluded by, or an obligation that arose for, the natural or legal person, entity or body concerned, before the date on which that natural or legal person, entity or body was included in Annex I or Annex Ia, the competent authorities of the Member States may authorise, under such conditions as they deem appropriate, the release of certain frozen funds or economic resources, provided that the competent authority concerned has determined that:

(a) the funds or economic resources will be used for a payment by a natural or legal person, entity or body listed in Annex I or Annex Ia; and

(b) the payment is not in breach of Article 3(2). 

1a.   For a natural or legal person, entity or body listed in Annex I, the intention to grant an authorisation shall be notified by the relevant Member State to the Sanctions Committee 10 working days in advance. 

2.   The Member State concerned shall inform the other Member States and the Commission of any authorisation granted under paragraph 1 within 2 weeks of the authorisation.

Article 9

1.   Article 3(2) shall not prevent the crediting of frozen accounts by financial or credit institutions that receive funds transferred by third parties onto the account of a listed natural or legal person, entity or body, provided that any additions to such accounts will also be frozen. The financial or credit institution shall inform the relevant competent authority about any such transaction without delay.

2.   Article 3(2) shall not apply to the addition to frozen accounts of:

(a) interest or other earnings on those accounts;

(b) payments due under contracts, agreements or obligations that were concluded or arose before the date on which the natural or legal person, entity or body referred to in Article 4 was included in Annex I or Annex Ia; or

(c) payments due to a natural or legal person, entity or body listed in Annex Ia under judicial, administrative or arbitral decisions rendered in the Union or enforceable in the Member State concerned,

provided that any such interest, other earnings and payments are frozen in accordance with Article 3.

Article 10

1.   Without prejudice to the applicable rules concerning reporting, confidentiality and professional secrecy, natural and legal persons, entities and bodies shall:

(a) supply immediately any information which would facilitate compliance with this Regulation, such as information on accounts and amounts frozen in accordance with Article 3(1), to the competent authority of the Member State where they are resident or located, and transmit such information, directly or through the Member State, to the Commission; and

 (b) cooperate with the competent authority in any verification of the information referred to in point (a).

2.   Any additional information received directly by the Commission shall be made available to the Member States.

3.   Any information provided or received in accordance with this Article shall be used only for the purposes for which it was provided or received.

Article 11

1.   It shall be prohibited to participate, knowingly and intentionally, in activities the object or effect of which is to circumvent the measures referred to in Articles 2 and 3.

2.   Natural or legal persons, entities or bodies listed in Annex I or Annex Ia shall:

(a) report before 9 January 2023 or within 6 weeks from the date of listing in Annex I, whichever is the latest, funds or economic resources within the jurisdiction of a Member State belonging to, owned, held or controlled by them, to the competent authority of the Member State where those funds or economic resources are located;

(aa) report before 9 September 2023 or within 6 weeks from the date of listing in Annex Ia, whichever is the latest, funds or economic resources within the jurisdiction of a Member State belonging to, owned, held or controlled by them, to the competent authority of the Member State where those funds or economic resources are located; and 

(b) cooperate with the competent authority in any verification of such information.

3.   Failure to comply with paragraph 2 shall be considered as participation, as referred to in paragraph 1, in activities the object or effect of which is to circumvent the measures referred to in Article 2.

4.   The Member State concerned shall inform the Commission within 2 weeks of the information received pursuant to paragraph 2, points (a) and (aa).

5.   The obligation in paragraph 2, point (a) shall not apply until 1 January 2023 with regard to funds or economic resources located in a Member State that had laid down a similar reporting obligation under national law before 28 November 2022.

5a.   The obligation in paragraph 2, point (aa), shall not apply until 2 September 2023 with regard to funds or economic resources located in a Member State that had laid down a similar reporting obligation under national law before 1 August 2023.

6.   Any information provided or received in accordance with this Article shall be used only for the purposes for which it was provided or received.

7.   Any processing of personal data shall be carried out in accordance with this Regulation, Regulation (EU) 2016/679 and Regulation (EU) 2018/1725 of the European Parliament and of the Council and only in so far as necessary for the application of this Regulation.

Article 12

1.   The freezing of funds and economic resources or the refusal to make funds or economic resources available, carried out in good faith on the basis that such action is in accordance with this Regulation, shall not give rise to liability of any kind on the part of the natural or legal person or entity or body implementing it, or its directors or employees, unless it is proved that the funds and economic resources were frozen or withheld as a result of negligence.

2.   Actions by natural or legal persons, entities or bodies shall not give rise to any liability of any kind on their part if they did not know, and had no reasonable cause to suspect, that their actions would infringe the measures set out in this Regulation.

Article 13

1.   No claims in connection with any contract or transaction the performance of which has been affected, directly or indirectly, in whole or in part, by the measures imposed under this Regulation, including claims for indemnity or any other claim of this type, such as a claim for compensation or a claim under a guarantee, notably a claim for extension or payment of a bond, guarantee or indemnity, particularly a financial guarantee or financial indemnity, of whatever form, shall be satisfied, if they are made by:

(a) natural or legal persons, entities or bodies listed in Annex I or Annex Ia;

(b) any natural or legal person, entity or body acting through or on behalf of one of the natural or legal persons, entities or bodies referred to in point (a).

2.   In any proceedings for the enforcement of a claim, the onus of proving that satisfying the claim is not prohibited by paragraph 1 shall be on the natural or legal person, entity or body seeking the enforcement of that claim.

3.   This Article is without prejudice to the right of the natural or legal persons, entities and bodies referred to in paragraph 1 to judicial review of the legality of the non-performance of contractual obligations in accordance with this Regulation.

Article 14

1.   The Commission and Member States shall inform each other of the measures taken under this Regulation and share any other relevant information at their disposal in connection with this Regulation, in particular information in respect of:

(a) funds frozen under Article 3(1) and authorisations granted under Articles 6, 6a, 6b, 7 and 8;

(b) violation and enforcement problems and judgments handed down by national courts. 

2.   The Member States shall immediately inform each other and the Commission of any other relevant information at their disposal which might affect the effective implementation of this Regulation.

Article 15

The Commission shall be empowered to amend Annex II on the basis of information supplied by Member States.

Article 16

1.   Where the Security Council or the Sanctions Committee lists a natural or legal person, entity or body and has provided a statement of reasons for the designation, the Council shall include that natural or legal person, entity or body in Annex I. 

1a.   The Council shall establish and amend the list of natural and legal persons, entities and bodies set out in Annex Ia. 

1b.   The Council shall communicate its decision to a natural or legal person, entity or body as referred to in paragraphs 1 and 1a, including the grounds for listing, either directly, if the address is known, or through the publication of a notice, providing that natural or legal person, entity or body with an opportunity to present observations. 

2.   Where observations are submitted, or where substantial new evidence is presented, the Council shall review its decision and inform the natural or legal person, entity or body accordingly. 

3.   Where the Security Council or the Sanctions Committee decides to delist a natural or legal person, entity or body, or to amend the identifying data of a listed natural or legal person, entity or body, the Council shall amend Annex I accordingly. 

The list set out in Annex Ia shall be reviewed at regular intervals and at least every 12 months.

Article 17

1.   Member States shall lay down the rules on penalties applicable to infringements of the provisions of this Regulation and shall take all measures necessary to ensure that they are implemented. The penalties provided for must be effective, proportionate and dissuasive.

2.   Member States shall notify the Commission of the rules referred to in paragraph 1 without delay after 28 November 2022 and shall notify it of any subsequent amendment.

Article 18

1.   The Council, the Commission and the High Representative of the Union for Foreign Affairs and Security Policy (the “High Representative”) shall process personal data in order to carry out their tasks under this Regulation. Those tasks include: 

(a) as regards the Council, preparing and making amendments to Annexes I and Ia;

(b) as regards the High Representative, preparing amendments to Annexes I and Ia;

(c) as regards the Commission: 

(i) adding the contents of Annexes I and Ia to the electronic, consolidated list of persons, groups and entities subject to Union financial sanctions and to the interactive sanctions map, both publicly available; 

(ii) processing information on the impact of the measures provided for in this Regulation such as the value of frozen funds and information on authorisations granted by the competent authorities. 

2.   The Council, the Commission and the High Representative may process, where applicable, relevant data relating to criminal offences committed by listed natural persons, to criminal convictions of such persons or to security measures concerning such persons, only to the extent that such processing is necessary for the preparation of Annexes I and Ia.

3.   For the purposes of this Regulation, the Council, the Commission service listed in Annex II to this Regulation and the High Representative are designated as ‘controller’ within the meaning of Article 3, point (8), of Regulation (EU) 2018/1725, in order to ensure that the natural persons concerned can exercise their rights under Regulation (EU) 2018/1725.

Article 19

1.   Member States shall designate the competent authorities referred to in this Regulation and identify them on the websites listed in Annex II. Member States shall notify the Commission of any changes in the addresses of their websites listed in Annex II.

2.   Member States shall notify the Commission of their competent authorities, including the contact details of those competent authorities, without delay after 28 November 2022, and shall notify it of any subsequent amendment.

3.   Where this Regulation sets out a requirement to notify, inform or otherwise communicate with the Commission, the address and other contact details to be used for such communication shall be those indicated in Annex II.

Article 20

This Regulation shall apply:

(a) within the territory of the Union, including its airspace;

(b) on board any aircraft or vessel under the jurisdiction of a Member State;

(c) to any natural person inside or outside the territory of the Union who is a national of a Member State;

(d) to any legal person, entity or body, inside or outside the territory of the Union, which is incorporated or constituted under the law of a Member State;

(e) to any legal person, entity or body in respect of any business done in whole or in part within the Union.

Article 21

This Regulation shall enter into force on the date of its publication in the Official Journal of the European Union.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Annex I - List of natural and legal persons, entities and bodies referred to in Article 2, 3 and 9

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Annex Ia - List of natural and legal persons, entities or bodies referred to in Article 4a

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Annex II - Websites for information on the competent authorities and address for notifications to the Commission

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Initial version

Amended by