A foreign founder can create a French subsidiary, register a branch, or operate through a permanent establishment without immediately understanding the French employee profit-sharing rules. The key question is not whether the parent company made money worldwide. It is whether the relevant employer meets the French headcount and profit tests, and whether French law requires a participation scheme or another value-sharing device. The answer changes when the workforce reaches 50 employees, and a separate five-year experiment applies to many companies employing between 11 and 49 people.

For a company in the 11–49 range, the practical trigger is usually three consecutive financial years with a net fiscal profit at least equal to 1% of turnover, provided the activity is carried on through a company and the employer is not already subject to mandatory participation. The employer must then implement one recognised device for the following financial year: participation, intéressement, an employer contribution to an employee savings plan, or the prime de partage de la valeur (PPV), meaning value-sharing bonus. This is an obligation to put a device in place, not a promise that every employee will receive an identical fixed sum.

This article explains the rules for foreign-owned companies, French subsidiaries, branches and permanent establishments. It separates the 50-employee participation regime from the 11–49 employee experiment, identifies the documents needed to test the 1% threshold, and sets out a defensible implementation path. The law, tax treatment, treaty position, headcount and payroll facts can change the result; a group policy or foreign accounting document cannot replace a French analysis of the employing entity.

I. Does a foreign-owned company have to share profits in France?

A. Which entity, headcount and profit trigger create the obligation?

The first mistake is to treat “foreign-owned” as a legal exemption. Ownership does not decide the issue. A French SAS, meaning société par actions simplifiée or simplified joint-stock company, is a French employer even when all its shares are held by a company in the United States, the United Kingdom, Singapore or another country. A French SARL, meaning société à responsabilité limitée or limited-liability company, is assessed in the same way. The shareholders’ nationality and the location of the group headquarters matter for evidence and tax allocation, but they do not remove French employment rules.

A branch requires a different description. It has no separate legal personality from its foreign company, yet the French establishment can employ people, maintain payroll records and conduct a French activity. The headcount and the profit analysis must therefore identify the actual employer, the French establishment concerned and the accounting perimeter used for French tax. A representative office that performs no commercial activity and employs no French employees will usually present a different issue. A foreign parent’s consolidated accounts, by themselves, do not establish that a French employer has met the statutory test.

The same care is required for a permanent establishment. The French tax administration explains that a permanent establishment is generally a fixed business installation with its own activity in France or a dependent agent with authority to bind the company, subject to the applicable tax treaty. Its official guidance on permanent establishments in France also distinguishes the treaty analysis from the domestic concept of a business operated in France. For employee value-sharing purposes, the French activity, its workforce and its French tax result should be documented rather than inferred from the parent company’s global profit.

The ordinary mandatory participation rule starts with the 50-employee threshold. Article L. 3322-2 of the French Labour Code states that companies employing at least 50 employees guarantee their employees the right to participate in the company’s results. The statutory wording is direct: Les entreprises employant au moins cinquante salariés garantissent le droit de leurs salariés à participer aux résultats de l’entreprise. An employer cannot replace this regime with a private promise to the founder’s chosen staff or with a group bonus that leaves eligible employees outside the French arrangement.

The timing is not simply “the day the fiftieth person starts.” Article L. 130-1 of the Social Security Code uses an annual average: l’effectif salarié annuel de l’employeur […] correspond à la moyenne du nombre de personnes employées au cours de chacun des mois de l’année civile précédente. Its rules also address the year of the first employee and the five consecutive calendar years used when a threshold is crossed upwards. Article L. 3322-1 of the Labour Code links the start of the participation obligation to the first financial year opened after the relevant five-year period. The payroll provider’s monthly headcount file is therefore not a minor administrative detail; it is evidence of the date on which the regime becomes due.

For smaller companies, Article 5 of Law no. 2023-1107 of 29 November 2023 on value sharing creates a separate experiment. It applies, in the usual case, to a company with at least 11 and fewer than 50 employees that has achieved a net fiscal profit at least equal to 1% of turnover for three consecutive financial years and is not already required to establish mandatory participation. The law describes the measure as applying à titre expérimental et pendant une durée de cinq ans. The experiment applies to financial years opened after 31 December 2024, with the three preceding financial years used for the profit test.

The legal wording is slightly broader than a simple “11–49” slogan: it refers to enterprises with at least 11 employees that are outside the mandatory participation rules. A company with 50 or more employees that has not yet entered the mandatory participation regime because of the threshold-timing rules may need a separate review. The practical decision should identify both facts: the number of employees under the statutory counting method and whether the employer is already within Articles L. 3322-1 to L. 3322-5.

The first application often requires looking back to the 2022, 2023 and 2024 financial years where the company’s financial year follows the calendar year. That does not mean every company is assessed on those dates. A foreign-owned company with a 30 September year-end must map its own opening and closing dates, identify the three consecutive exercises, and then determine which following exercise requires the device. A late incorporation, a change of year-end or a transfer of business can change the sequence. The board minutes, tax returns and annual accounts should all tell the same story.

The word “profit” is also a trap. The 1% test uses net fiscal profit within the meaning of the statutory participation rules, not a group’s consolidated EBITDA, not a management forecast, and not automatically the profit shown in a foreign parent’s consolidated accounts. Article L. 3324-1 of the Labour Code begins its formula with the benefit realised in France and the overseas territories listed by the text, as retained for income tax or corporate tax purposes. Its wording refers to amounts calculées sur le bénéfice réalisé en France métropolitaine. For a branch or permanent establishment, the allocation of revenue, expenses, financing charges and transfer-pricing adjustments can therefore be decisive.

Turnover must be measured on the same legally relevant perimeter. A parent’s global turnover cannot be used casually to dilute a French entity’s ratio, while a French entity’s local sales cannot be inflated by adding invoices issued by a different group company. The accounting team should prepare a bridge from statutory accounts to the net fiscal profit used for the test, show the turnover figure, list tax adjustments and retain the filed tax evidence. If the French activity is taxed under a treaty allocation, the treaty and the supporting allocation should be kept with the calculation.

Group structures add another layer. A foreign parent may have several French subsidiaries, a French branch and employees seconded from abroad. Article L. 3344-1 of the Labour Code allows participation, intéressement or an employee savings plan to be established within a group of legally independent companies that have financial and economic links. That provision creates an available group mechanism; it does not automatically merge every company’s headcount or taxable profit for every threshold. An UES, or economically and socially unified group, has its own statutory conditions and should not be confused with a foreign parent’s ordinary corporate control.

French situation	What to test	Practical consequence
Company below 11 employees	No Article 5 experiment solely on this headcount	Participation, intéressement or PPV may still be voluntary or required by another commitment.
Company generally between 11 and 49 employees	Three consecutive exercises with net fiscal profit at least 1% of turnover, and no mandatory participation	One recognised value-sharing device must apply for the following exercise.
Company at least 50 employees	Annual headcount, threshold history and any UES or group arrangement	Mandatory participation may apply after the statutory five-year threshold period.
Foreign company with a French branch or permanent establishment	French employer, French workforce and French-taxable result	Foreign ownership is not a defence; treaty and allocation documents become important.

This table is a screening tool, not a substitute for the accounting and payroll file. A company can sit at 49 employees for one statutory calculation and still be part of a UES or group arrangement affecting the employees’ rights. Conversely, several companies controlled by one foreign parent do not automatically become one employer for every purpose. The French registration extract, commonly called a Kbis, is useful evidence of the company and its representative, while the RNE, or Registre national des entreprises, is the national business register. Neither document proves the 1% test without the financial and headcount records.

B. What does “sharing profits” actually require?

“Profit sharing” is a convenient English label, but it hides four different routes. The 11–49 experiment does not force the employer to distribute the same amount of profit as a dividend. It requires an eligible device that gives employees access to a statutory value-sharing mechanism. The employer must select, document and operate one route for the relevant exercise; it cannot simply state in a board resolution that the group’s annual bonus policy satisfies French law without checking the statutory form.

The first route is participation. Under Article L. 3322-1, La participation a pour objet de garantir collectivement aux salariés le droit de participer aux résultats de l’entreprise. Participation is a deferred financial interest linked to the net profit and the statutory reserve known as the réserve spéciale de participation, or RSP. Article L. 3324-1 sets the legal calculation framework, including the net profit, equity, payroll and value-added components. An agreement may provide a more favourable calculation, but its drafting must be tested against the rules on equivalence and distribution.

The second route is intéressement, a collective performance or results-based incentive scheme. It can be linked to financial results, operational objectives or measurable performance indicators, subject to the statutory rules on randomness, collective coverage and calculation. It is not the same as a guaranteed salary supplement. For a small company without a recognised negotiating body, Article L. 3312-5 permits, in specified circumstances, that un régime d’intéressement peut être mis en place par décision unilatérale. A foreign director should not assume that a document signed by the parent company is the French decision unilaterally implementing the plan.

The third route is an employer contribution, or abondement, to an employee savings plan. The plan may be a PEE, meaning plan d’épargne entreprise or company savings plan, a PEI, meaning inter-company savings plan, or an eligible retirement savings arrangement such as a PERECO, meaning company collective retirement savings plan. The contribution must be made under the rules of the chosen plan and recorded for the eligible employees. Opening a bank account labelled “bonus” and paying a discretionary amount to selected staff does not create an employee savings plan.

The fourth route is the PPV, or prime de partage de la valeur. The official Service Public Entreprendre guidance on the PPV explains that the bonus is normally a permanent but optional device, while the five-year experiment makes one of the value-sharing routes compulsory for qualifying companies. A company may set different amounts using permitted criteria, but the bonus cannot replace an increase in remuneration, a contractual bonus, a collective-agreement entitlement or an established practice. The employer should state in the implementing act why the PPV is being used to satisfy the experiment and identify the relevant exercise.

Dividends do not replace employee value sharing. A dividend is a return to shareholders, while participation, intéressement, a savings-plan contribution and PPV are employee mechanisms governed by labour and social-security rules. A foreign parent may receive dividends from a French subsidiary under the corporate and tax rules, yet the subsidiary may still owe a participation or value-sharing measure to its employees. The founder’s own status as president of an SAS or gérant of an SARL does not answer whether the company’s employees are covered.

Coverage is collective. Article L. 3342-1 of the Labour Code provides that employees within the scope of the relevant agreement or plan benefit from its provisions and allows only a maximum three-month seniority condition. The opening words are Tous les salariés d’une entreprise compris dans le champ des accords d’intéressement et de participation. The English summary is simple: eligibility cannot be restricted to senior executives, French nationals or employees selected by the foreign parent.

The scope can include employees whose working pattern is international. In its decision of 6 June 2018, nos. 17-14.372, 17-14.373, 17-14.374 and 17-14.375, the Social Chamber of the Cour de cassation held that employees who remained in the French company’s workforce could not be excluded merely because they worked in foreign branches or were paid there. The court stated that they doivent avoir la possibilité de bénéficier de la répartition des résultats de l’entreprise. This decision concerns the French employer’s scheme and does not mean that every employee of a foreign subsidiary automatically joins a French plan. It does mean that a group mobility policy must be checked against French collective coverage.

The distinction matters for a foreign founder who has one French employee, several employees hired locally, and a seconded employee whose employment contract remains with the parent or another group company. The payroll employer, the agreement’s scope, the applicable social-security legislation and the employee’s position in the relevant headcount should be identified one by one. A secondment agreement can allocate costs between group companies without changing the legal beneficiary of a French scheme. The group’s HR spreadsheet is useful, but it is not conclusive.

Participation also has a strict accounting logic. In its decision of 10 January 2017, no. 14-23.888, the Cour de cassation applied the rule that the certified net profit cannot simply be re-litigated in a participation dispute. The decision records that le montant du bénéfice net est établi par une attestation de l’inspecteur des impôts ou du commissaire aux comptes. A company should therefore obtain the appropriate tax or statutory-auditor evidence before calculating a participation reserve, rather than trying to repair the file after an employee claim.

A foreign founder should also avoid importing a group bonus template without adapting the language. The French document should identify the employer, the covered employees, the exercise, the calculation or allocation rule, the implementation route, the payment or investment process and the information given to employees. It should explain French acronyms at first use and keep the official French titles of forms and bodies. A translated policy can accompany the French act, but it should not contradict it.

II. How should a foreign founder implement and defend compliance in France?

A. What documents, calculations and filing steps should be completed?

The safest implementation begins with a written perimeter memo. The memo should name the legal employer, its SIREN, its establishments, its foreign parent, its accounting year-end and any UES or group agreement. SIREN is the nine-digit French business identification number. The memo should then list every person counted for the relevant year, the contract or secondment basis, the start and end dates, the payroll entity and any reason for exclusion under the statutory counting rules. This first file prevents a common error: asking a foreign accountant for a group headcount when the French question concerns a particular employer.

The second file is the three-year financial bridge. For each of the three consecutive exercises, keep the approved annual accounts, corporate tax return, tax computation, turnover reconciliation, permanent-establishment allocation where relevant, related-party charges and any tax adjustment that affects net fiscal profit. Separate accounting profit, taxable profit, net fiscal profit used by the participation rules and distributable profit. Record the percentage calculation as an actual formula: net fiscal profit divided by turnover, multiplied by 100. A result of 0.99% is not the same as a result of 1.00%, and rounding must be explained rather than used to manufacture eligibility.

For a French subsidiary, the bridge usually starts with the subsidiary’s own French statutory accounts and corporate tax filing. For a branch or permanent establishment, the accounting may be prepared within the foreign parent’s books, which makes the allocation file more important. The international business guidance from impots.gouv.fr should be read together with the applicable treaty, local tax declarations and transfer-pricing documentation. If the existence or scope of a permanent establishment is uncertain, the tax administration describes a written ruling procedure, known as a rescrit, for a good-faith taxpayer that presents the facts fully and accurately.

The third file is the implementation decision. If the company selects participation, prepare the participation agreement, the calculation rules, the distribution method, the investment or payment destination, employee notices and the evidence of filing through the current administrative channel. If it selects intéressement, define the objective formula, its period, collective coverage, verification method and the route by which it is adopted. If it selects an employee savings-plan contribution, identify the plan, the fund administrator, the contribution conditions and each employee’s information notice. If it selects PPV, identify the amount or permitted differentiation criteria, the eligible employees, the payment dates and the legal basis of the decision.

The negotiating route matters. Depending on the company’s workforce and representation, the act may require a collective agreement, an agreement with employee representatives, an agreement concluded with the Comité social et économique (CSE), meaning the Social and Economic Committee, or employee ratification. For an intéressement scheme, Article L. 3312-5 lists the available routes and the conditions for a decision by the employer in a company with fewer than 50 employees. A small foreign-owned company should check whether it has a CSE or trade-union representative before using a template that assumes neither exists.

The decision should be made early enough to operate for the following exercise. The experiment is not satisfied by a promise to “review the matter after the annual accounts are closed” if the statutory device has not been implemented for the exercise concerned. Conversely, a company should not pay a random amount before choosing the legal route and then label it participation after the fact. The date of the agreement or decision, the exercise to which it applies and the date of its deposit or communication should be retained in a single chronology.

Employee information is part of operational compliance. Each eligible employee should receive a document that explains the device, the calculation or allocation rule, the possible payment or investment choice, the relevant dates and the contact for questions. The document should be available in a language employees can understand, while preserving the authoritative French act. A foreign HR department can distribute the information, but the French employer should be able to prove what was distributed and when. The same file should retain delivery evidence, employee requests and any investment choices.

Here is a worked example. A French subsidiary has an annual average of 24 employees in 2025 and 2026 and 21 in 2027. It is a company, is not yet subject to mandatory participation, and its net fiscal profits and turnover are respectively €32,000 and €2,400,000 for 2025, €28,000 and €2,200,000 for 2026, and €35,000 and €2,900,000 for 2027. The ratios are 1.33%, 1.27% and 1.21%. If the figures are the relevant French figures and the exercise sequence is correct, the company should treat the Article 5 condition as met and implement one of the recognised devices for the following exercise. It has not been required to pay €32,000, €28,000 or €35,000 to employees; it has been required to operate a compliant value-sharing route.

Now change one fact. If the €32,000 is the parent’s consolidated net profit, but the French subsidiary’s own legally relevant net fiscal profit is €18,000, the calculation is €18,000 divided by €2,400,000, or 0.75%. The group’s headline profit does not cure the French shortfall. If the French branch’s result is determined by a treaty allocation that differs from its internal management accounts, the allocation must be reviewed before the percentage is confirmed. This is why the board pack should include a tax memo, not just a slide showing group EBITDA.

Foreign founders should keep the company’s formal identity documents alongside the labour file. The Kbis or RNE extract confirms the registered entity, the greffe, meaning the commercial court registry, and the legal representative. The INPI Guichet unique, meaning the one-stop electronic business-formality portal, is used for many French corporate formalities. These documents do not replace the participation calculation, but they help show who had authority to sign, which entity employed the staff and whether a branch or subsidiary was being assessed.

File to assemble	Minimum contents	Why a foreign group needs it
Employer and headcount file	Legal entity, SIREN, establishments, contracts, secondments, monthly workforce and UES or group links	It identifies the French employer and the correct threshold date.
Three-year tax file	Accounts, tax returns, net fiscal profit, turnover, adjustments and French allocation	It tests the 1% rule without relying on consolidated figures.
Choice-of-device file	Agreement or DUE, formula, exercise, beneficiaries, payment or savings plan and filing proof	It proves that a recognised route was actually implemented.
Employee-information file	Notices, delivery evidence, choices, payroll instructions and questions	It reduces disputes about coverage, dates and the amount or investment option.

B. What should happen after a late decision, employee challenge or audit?

A late discovery should trigger a controlled correction, not a backdated document. First preserve the original accounts, payroll exports, board papers and foreign-parent instructions. Then identify the precise failure: wrong headcount, wrong profit perimeter, missing three-year evidence, defective adoption route, incomplete employee coverage, failure to deposit or an amount paid under the wrong payroll code. The remedy depends on the failure. Replacing a missing value-sharing device for a future exercise is not the same as correcting an underpaid participation reserve for a closed exercise.

Participation disputes have a distinctive evidentiary rule. Article L. 3326-1 of the Labour Code provides that the net profit and equity used for participation are established by an attestation from the tax inspector or statutory auditor and cannot be challenged in a dispute arising from the title. The text also separates disputes about payroll and value added from other disputes. This means the company should identify the exact attestation, the accounts and the exercise before employees or a CSE asks for a recalculation.

The decision of the Cour de cassation of 28 February 2018, no. 16-17.994, available on Légifrance, illustrates why an ordinary tax letter may not perform the same role as a formal attestation. The case concerned the calculation of the special participation reserve and the evidentiary form of documents addressing net profit and equity. The court’s reasoning should not be reduced to a slogan that “the auditor always wins”: the nature of the document, the exercise and the statutory procedure matter.

The interaction with foreign-parent pricing deserves special attention. In its decision of 25 October 2023, no. 23-14.147, the Social Chamber of the Cour de cassation referred a constitutional question concerning Article L. 3326-1 in litigation where employees alleged that contractual arrangements with a Swiss group company reduced the French companies’ participation base. The court described the provision as interpreted by its settled case law and stated that the question was serious enough to be referred. A cross-border services agreement is therefore not just a tax document when it affects the French net profit used for participation.

The Conseil constitutionnel answered that question in Decision no. 2023-1077 QPC of 24 January 2024, published on Légifrance. It upheld the contested rule, explaining that the attestation is intended to ensure concordance between the net profit and equity declared to the tax administration and the figures used for the participation reserve. The decision records that Ces montants ne peuvent être remis en cause in a participation dispute, while also noting that the tax administration may correct a declaration and a rectifying attestation may then support a new calculation. The practical lesson is to challenge a tax or accounting error through the correct channel before it becomes an employee claim.

For an employee or CSE, the first question is whether the employer chose the correct device and covered the correct people. The second is whether the amount, formula, seniority rule and payment or investment process match the adopted text. The third is whether the employer has documents showing the headcount and profit test. A company should not respond with a foreign parent’s annual report if the claim concerns the French subsidiary’s participation base. It should provide the French documents that are legally relevant, subject to confidentiality and data-protection limits.

The case law also shows that employees cannot be excluded because their work is international when they remain within the French employer’s workforce. The 6 June 2018 decision cited above is particularly important for a foreign group that sends French employees to a branch in London, New York or Singapore. The group should map the employee’s contract, employer, payroll and continued membership of the French workforce. The reverse situation, where the employee belongs solely to a foreign subsidiary and works temporarily in France, requires a different analysis and may involve immigration, social-security and tax rules outside the value-sharing question.

Payment timing must be checked separately from eligibility. In its decision of 15 February 2016, no. 367752, the Conseil d’État examined the relationship between the closing of the exercise, the special participation reserve and amounts later paid to employees. The decision explains that the attribution of the reserve occurs after the closing of the exercise for which participation is calculated and that a later payment may relate to a prior profitable exercise. A cash payment made in the wrong period should not be used to rewrite the underlying exercise or the employee’s entitlement.

If the company has missed the implementation deadline, it should create a written remediation plan with an accountant, payroll provider and employment counsel. The plan should state what can still be implemented, whether a collective route is required, how employees will be informed, whether a payment or contribution is possible, and how the company will prevent a repeat in the next exercise. It should not invent a retrospective PPV or alter approved financial statements without the appropriate accounting and tax process.

Audit preparation should include a one-page chronology. It should show: the monthly headcount; the three profit-and-turnover ratios; the date on which the company concluded it was or was not in scope; the date and form of the agreement or decision; the deposit or filing; the employee notice; the payroll or savings-plan execution; and any correction. The chronology lets the URSSAF, meaning the French body that collects social-security contributions, understand the company’s reasoning. It also lets the founder identify quickly which fact requires legal advice.

A dispute over the net profit or equity used for participation may be constrained by Article L. 3326-1, but other disputes remain possible. Employees can challenge coverage, the application of the agreement, the distribution method, the timing, a seniority condition that exceeds the permitted limit or a failure to implement the selected device. The company should not treat the attestation rule as immunity from employment claims. It protects a defined part of the calculation; it does not validate a defective agreement, discriminatory selection or missing employee information.

Use the following decision sequence when a foreign parent asks whether it “already shares profits”:

1. Identify the French legal employer and every French establishment.
2. Rebuild the statutory annual headcount and check any UES, group or secondment issue.
3. Test the three consecutive exercises using French net fiscal profit and the relevant turnover.
4. Check whether mandatory participation already applies or whether the 11–49 experiment is the applicable route.
5. Choose participation, intéressement, a savings-plan contribution or PPV, and adopt it through the correct French procedure.
6. Give employees the required information, operate the payroll or savings process and retain proof.
7. Review the file before the next year-end and correct the calculation through the proper tax or accounting channel if an error is discovered.

This sequence is useful for a newly incorporated French company, a branch expanding its French team, and a foreign group transferring employees into a French subsidiary. It also keeps the advice within the corporate desk. Questions about an individual founder moving to France belong to an immigration or private-client analysis, while a property purchase belongs to real-estate counsel. The corporate issue here is the French employer’s employee value-sharing obligation.

For the broader corporate formation context, a foreign founder can also consult the firm’s French company formation and corporate-law overview. That page is a hub for the entity, registration and governance questions that should be read alongside this narrower employee-sharing analysis. The new article should be treated as a focused companion, not as a replacement for the company’s tax and payroll file.

In a more recent decision of 18 March 2026, no. 24-17.941, the Social Chamber of the Cour de cassation confirmed that sums due under participation are not salary for labour-law and social-contribution purposes. The judgment states that such sums n’ont pas le caractère d’élément de salaire and applies the two-year limitation period to a claim for payment of a participation debt. That ruling does not reduce the employer’s obligation; it makes the remediation chronology and the date on which a claim became actionable especially important for a foreign group correcting an old payroll file.

Conclusion

A foreign-owned company does not avoid French employee value-sharing rules merely because the shareholder, director or accounting department is abroad. The relevant questions are the identity of the French employer, the statutory headcount, the three-year French net fiscal profit and turnover test, and the existence of a mandatory participation regime. In the common 11–49 employee case, a company that meets the 1% test for three consecutive exercises must implement one recognised device for the following exercise. It does not necessarily have to distribute a fixed percentage of profit or pay the same bonus to every employee.

At 50 employees, the ordinary participation regime requires a separate threshold-timing analysis. For a branch or permanent establishment, tax-treaty allocation and French employment records are central. For a group, a group agreement may help, but it does not automatically merge every employer. Employees within the scope must be covered, and international work or foreign payment arrangements cannot be used as a shortcut to exclude people who remain in the French employer’s workforce.

The defensible approach is documentary: rebuild the headcount, reconcile the three financial years, verify the French tax perimeter, choose the device, adopt it through the correct route, inform employees and preserve the evidence. If a dispute arises, distinguish the certified participation calculation from the separate questions of coverage, procedure and execution. That method gives a foreign founder a clear answer before the next financial year closes and a usable file if the company is later questioned.

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