Withdrawal from the European Union

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Withdrawal from the European Union is a right of European Union (EU) member states under Treaty on European Union (Article 50): "Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements." While no state has ever withdrawn from the EU, Greenland, part of the Danish Realm, voted to leave the EU's predecessor, the European Economic Community (EEC), in 1985, and Algeria left upon independence in 1962, having been a part of France until then.

No member state has ever held a national referendum on withdrawal from the European Union, though in 1975 the United Kingdom held a national referendum on withdrawal from its predecessor, the EEC; 67.2% of voters chose to remain in the Community.

Procedure[edit]

The Treaty of Lisbon introduced an exit clause for members who wish to withdraw from the Union. Under TEU Article 50, a Member State would notify the European Council of its intention to secede from the Union and a withdrawal agreement would be negotiated between the Union and that State. The Treaties would cease to be applicable to that State from the date of the agreement or, failing that, within two years of the notification unless the State and the Council both agree to extend this period. The agreement is concluded on behalf of the Union by the Council and shall set out the arrangements for withdrawal, including a framework for the State's future relationship with the Union. The agreement is to be approved by the Council, acting by qualified majority, after obtaining the consent of the European Parliament. A former Member State seeking to rejoin the European Union would be subject to the same conditions as any other applicant country.

This system gives a negotiated withdrawal, due to the complexities of leaving the EU (particularly concerning the euro). However it does include in it a strong implication of a unilateral right to withdraw. This is through the fact the state would decide "in accordance with its own constitutional requirements" and that the end of the treaties' application in said state is not dependent on any agreement being reached (it would occur after two years regardless).[1]

The remaining members of the EU would also need to undertake negotiations on how to make the necessary changes to the EU's budgets, voting allocations and policies.[2]

Pre-Lisbon situation[edit]

Before the Treaty of Lisbon entered into force on 1 December 2009 no provision in the treaties or law of the EU outlined the ability of a state to voluntarily withdraw from the EU. The European Constitution did propose such a provision and, after the failure to ratify it, that provision was then included in the Lisbon Treaty. The absence of such a provision made withdrawal technically difficult (as, to a certain extent, it still is) but not impossible.[1]

Legally there were two interpretations in that environment of whether a state could leave. The first, that sovereign states have a right to withdraw from their international commitments; and the second, the treaties are for an unlimited period, with no provision for withdrawal and calling for an "ever closer union" - such commitment to unification is incompatible with a unilateral withdrawal. The Vienna Convention on the Law of Treaties states where a party wants to withdraw unilaterally from a treaty that is silent on secession, there are only two cases where withdrawal is allowed: where all parties recognise an informal right to do so and where the situation has changed so drastically, that the obligations of a signatory have been radically transformed.[1]

Outermost regions[edit]

TFEU Article 355(6), introduced by the Treaty of Lisbon allows the status of French, Dutch and Danish overseas territories to be changed more easily, by no longer requiring a full treaty revision. Instead, the European Council may, on the initiative of the member state concerned, change the status of an overseas country or territory (OCT) to an outermost region (OMR) or vice versa.[3]

Past withdrawals[edit]

Some former territories of European Union members broke formal links with the EU when they gained independence from their ruling country or were transferred to an EU non-member state. Most of these territories were not classed as part of the EU, but were at most associated with OCT status and EC laws were generally not in force in these countries.

Some current Special Member State territories and the European Union changed or are in the process of changing their status from such, where EU law applies fully or with limited exceptions to such, where the EU law mostly doesn't apply. The process also occurs in the opposite direction. The procedure for implementing such changes was made easier by the Treaty of Lisbon.

Algeria[edit]

The 1962 recovery of its independence by French Algeria, which had been an integral part of France since 1830 and hence of the then European Communities, was the only such occasion on which a territory subject to the Treaty of Rome has become an independent state.

Greenland[edit]

Greenland has chosen to leave the EU predecessor without also seceding from a member state. It initially voted against joining the EEC when Denmark joined in 1973, but because Denmark as a whole voted to join, Greenland, as a part of Denmark, joined too. When home rule for Greenland began in 1979, it held a new referendum and voted to leave the EEC. After wrangling over fishing rights the territory left the EEC in 1985,[4] but remains subject to the EU treaties through association of Overseas Countries and Territories with the EU. This was permitted by the Greenland Treaty, a special treaty signed in 1984 to allow its withdrawal.[5]

By precedent, since then, if a country wanted to withdraw from the EU it probably could, but special treaties and conditions would need to be agreed on. This is because of pre-existing commitments that any member state would have towards the EU and its fellow members. The same procedure was adopted in the Lisbon treaty.

Saint Barthélemy[edit]

Saint Martin and Saint-Barthélemy in 2007 seceded from Guadeloupe (overseas department of France and OMR of the EU) and became overseas collectivities of France, but at the same time remained OMRs of the European Union. Later, the elected representatives of the island of Saint-Barthélemy expressed desire "to obtain a European status which would be better suited to its status under domestic law, particularly given its remoteness from the mainland, its small insular economy largely devoted to tourism and subject to difficulties in obtaining supplies which hamper the application of some European Union standards." France, reflecting this desire, requested at the Council of the European Union to change the status of Saint Barthélemy to an OCT associated with the European Union.[6] The status change came in to effect from 1 January 2012.[6]

Future withdrawals and major withdrawal campaigns[edit]

Several states have political parties and individuals advocating and seeking withdrawal from the EU.[7] As of January 2010, there are no countries positioning themselves to withdraw from the EU, but there are numerous political movements campaigning for withdrawal. Although usually minor parties, in the more eurosceptic states of the EU there are the occasional electoral victories.

United Kingdom[edit]

The 1975 United Kingdom European Communities membership referendum[edit]

In 1975 the United Kingdom held a referendum in which the electorate was asked whether the UK should remain in the European Economic Community (EEC), commonly referred to as the Common Market in the UK. The UK had joined the EEC on 1 January 1973 under the Conservative government of Edward Heath. The general election held in October 1974 was won by the Labour party, who had made a manifesto commitment to renegotiate Britain's terms of membership of the EEC and then hold a referendum on whether to remain in the EEC on the new terms.

All of the major political parties and mainstream press supported continuing membership of the EEC. However, there were significant splits within the ruling Labour party, the membership of which had voted 2:1 in favour of withdrawal at a one day party conference on 26 April 1975. Since the cabinet was split between strongly pro-Europeans and strongly anti-Europeans, the Prime Minister, Harold Wilson, made the decision, unprecedented outside coalition government, to suspend the constitutional convention of Cabinet collective responsibility and allowed ministers to publicly campaign against each other. In total, seven of the twenty-three members of the cabinet opposed EEC membership.

On 5 June 1975, the electorate were asked to vote yes or no on the question: '"Do you think the UK should stay in the European Community (Common Market)?" Every administrative county in the UK had a majority of "Yes", except the Shetland Islands and the Outer Hebrides. In line with the outcome of the vote, the United Kingdom remained within the EEC which later became The European Union.

Yes votes Yes (%) No votes No (%) Turnout (%)
17,378,581 67.2 8,470,073 32.8 64.5

Calls for a referendum on the EU[edit]

There have increasingly been calls for the UK to hold a referendum on leaving the EU (the EEC's successor). In the UK, the United Kingdom Independence Party (UKIP) campaigns for British withdrawal, achieving third place in the UK during the 2004 European elections and second place in the 2009 European elections – that time gaining the same number of seats as the governing Labour Party. The party is committed to holding a referendum on Britain's status in the European Union. UKIP have gained much support since the 2010 General Election, with a Survation poll in May 2013 showing them at a record 22%.

The rise of UKIP has threatened the current coalition government which has brought about a big debate in Britain on the issue of the EU, many of which wish to leave. Polls show that support for withdrawal going from 20%[8] to 60%,[9] depending on the wording of the question. In October 2009 a survey for the Daily Mail newspaper revealed that 58% of those polled wanted a referendum on the United Kingdom's membership of the EU.[10] According to a Yougov poll in Britain published in September 2010, 47% would vote for Britain to leave the European Union and 33% would vote for Britain to remain a member of the European Union, with more older people in favour of leaving and more younger people in favour of remaining in the EU.[11] In July 2011 due to a change in the Government's petition website which allows any petition which gathers more than 100,000 signatures to be debated in the House of Commons The Daily Express launched a petition to get a referendum on the United Kingdom leaving the European Union. As of 1 August 2011 days after its set up 700 people are signing an hour. However, Prime Minister David Cameron has refused to hold a referendum on the issue, stating that the 1975 referendum on the European Community represents the views of the people.[12] Nevertheless, the Backbench Business Committee have agreed to hold a Parliamentary debate on whether a referendum on the UK's membership of the EU should be held by May 2013; the debate is to take place on 24 October 2011. The proposed referendum would offer three choices: keeping the status quo, reforming the terms, or withdrawal. Over 70 MPs signed the motion to debate the issue.[13][14] According to a YouGov poll released on 23 October 2011, 66% of those questioned were in favour of a referendum on the European Union.[15] In November 2012, according to The Guardian's website survey, 56% of Britons would vote to leave the EU in a referendum.[16]

On 18 January 2013, a poll conducted by YouGov found that 40% of people were in favour of staying in the EU as opposed to 34% who favoured withdrawal.[17]

On 23 January 2013, an MSN poll of MSN UK readers found 31% of respondents were in favour of continuing membership as opposed to 69% who favoured an exit.[18]

On 25 January 2013, following David Cameron's in-out referendum pledge, in a poll conducted by Populus for The Times, 40 per cent of respondents said they would leave, 37 per cent said they would stay and 23 per cent said they did not know how they would vote. The Times suggested that, correcting for don't knows and likelihood of voting, this translated into 53% voting in favour of leaving the EU and 47% voting in favour of remaining in the EU.[19]

On 10 October 2014 UKIP, led by Nigel Farage, gained their first elected Member of Parliament, Douglas Carswell after winning a local by-election, after Carswell left the Conservative Party and joined UKIP. In another local by-election, UKIP came a close second to the Labour Party, with a margin of less than two percent. Farage was quoted as stating that UKIP could hold the "balance of power" in 2015,[20] referring to the UK general elections, where Nigel Farage is campaigning on the promise of a referendum on complete withdrawal from the EU should UKIP enter government.

2013 referendum promise[edit]

In 2012 British Prime Minister David Cameron rejected calls for a referendum on the UK's EU membership, but suggested the possibility of a future referendum "to ensure the UK's position within an evolving EU has 'the full-hearted support of the British people".[21] [22] [23] In January 2013, Cameron announced that the Conservative Party would hold an in-out referendum on EU membership before the end of 2017 on a renegotiated package if elected in 2015.[24]

Other parties which advocate for withdrawal from the EU[edit]

Czech Republic
Denmark
France
Finland
Greece
Italy
The Netherlands
Poland
Portugal

Break-up of a Member State[edit]

There is no precedent, as stated by the former Irish Minister of State for European Affairs Lucinda Creighton, for the breakup of any existing EU member state, and the continued membership of all or some of the new individual states.[27]

Scottish independence[edit]

Main article: Scottish independence

The Scottish National Party, presently in power in the Scottish Government, held a referendum on the independence of Scotland from the United Kingdom, an EU member state, on 18 September 2014. Should a majority have voted for independence, this would have been the first time the European Union would have had to deal with the breakup of any existing EU member state. There are no clear agreements or treaties covering such a scenario. The question arises whether one state is a successor (the UK) and one a new applicant (Scotland) or, alternatively, both are new states which must be admitted to the European Union.[28] However the UK Government's legal advice on the issue was that 'Since the [remainder of the UK] would be the same state as the UK, its EU membership would continue',[29] while speculating that 'On the face of it, Scotland would be required to accede to the EU as a new state, which would require negotiations on the terms of its membership ...', but that 'Scotland’s position within the EU is likely to be shaped more by any agreements between the parties than by pre-existing principles of EU law.'[30]

Without any formal process for handling the breakup of any member state, the European Commission offered, if requested by a member state, to provide an official view on the EU's position on Scottish EU membership in the event of its independence from the UK. The Scottish Government requested that UK Prime Minister David Cameron place this request, but such a request was not made.[31]

The YES campaign, which is led by Blair Jenkins, argued that Scotland would continue as a member state following a YES vote as Scotland would remain compliant with all EU Principles as outlined in TEU Article 2 and there are no provisions to exclude a state in the existing EU agreements.[32] During the period between a YES vote and formal independence, the Scottish Government could engage in negotiations, from within the EU, on the terms of their continuing membership in the EU. Several EU heads of state have expressed their opinion that this position is reasonable, as has James Crawford, co-author of the UK Government's legal advice on the issue.[33] In an interview on BBC Radio, asked if the timescale of 18 months for EU and other treaty organisation was possible, Crawford replied that he felt the timescale was reasonable.[34] However, there was no official comment on this view from the EU Commission. The Scottish SNP Government and the Yes Campaign both declared that continuation of membership in the EU is their preference.

The No Campaign (Better Together), led by Alistair Darling, argued that any vote for independence would have automatically placed Scotland out of the EU as a new State, and Scotland would have had to renegotiate entry.[35] Although there is no clear legal process for how this exit process for Scotland would have been enacted. Comments by several EU officials and other heads of EU member states echoed the NO Campaign view, and in mid-February 2014 Jose Manuel Barroso, the President of the European Commission, stated that it would have been 'very difficult' for an independent Scotland to join the EU, 'if not impossible', because of the difficulty of getting the approval of all member states, particularly Spain, which fears a possible secession of Catalonia and has blocked Kosovo's accession to the EU.[36] Spanish Prime Minister Mariano Rajoy, said in November 2013 that after a vote for independence, Scotland "will be left outside the EU",[37][38] while Spanish Foreign Minister José Garcia-Margallo, having said in February 2012 that Spain would not veto Scottish accession to the EU, provided Scottish independence had UK agreement (thus making it different from Catalan independence),[39] added in early February 2014 that an independent Scotland would have many hurdles to overcome in a lengthy process of negotiations and ratifications if it was to become an EU member.[38]

Catalan independence[edit]

Main article: Catalan independence

Catalonia, an autonomous community of Spain, is planning to hold a referendum on self-determination on Sunday 9 November 2014.[40]

EU Commissioner Joaquin Almunia confirmed in 2013 that Catalonia would have to apply for EU membership in the event of secession from Spain.[41] In November 2013, the Spanish Prime Minister, Mariano Rajoy, stated that an independent Scotland's entry to the EU would require the consent of all the existing members and that an independent Scotland or other regions gaining independence, taken as a reference to Catalonia, would end up outside of the EU.[37]

Suspension[edit]

While a state can leave, there is no provision for it to be excluded. But TEU Article 7 provides for the suspension of certain rights of a member state if a member persistently breaches the EU's founding values (respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities), outlined in TEU Article 2. The European Council can vote to suspend any rights of membership, such as voting and representation as outlined above. Identifying the breach requires unanimity (excluding the state concerned), but sanctions require only a qualified majority.[42] The state in question would still be bound by the obligations treaties and the Council acting by majority may alter or lift such sanctions. The Treaty of Nice included a preventative mechanism whereby the Council, acting by majority, may identify a potential breach and make recommendations to the state to rectify it before action is taken against it as outlined above.[42] The closest this provision came to being used was in early 2000 due to Austria forming a government which included the far right Freedom Party. Other member states threatened to cut off diplomatic contacts in response and some feared Article 7 might be invoked.[1]

However the treaties do not provide any mechanism to expel a member state outright. The idea appeared in the drafting of the European Constitution and the Lisbon Treaty but failed to be included. There are a number of considerations which make such a provision impractical. Firstly, a member state leaving would require amendments to the treaties, and amendments require unanimity. Unanimity would be impossible to achieve if the state did not want to leave of its own free will. Secondly it is legally complicated, particularly with all the rights and privileges being withdrawn for both sides that would not be resolved by an orderly and voluntary withdrawal. Third, the concept of expulsion goes against the spirit of the treaties. Most available sanctions are conciliatory, not punitive; they do not punish a state for failing to live up to fellow states' demands, but encourage a state to fulfill its treaty obligations - expulsion would certainly not achieve that.[1]

References[edit]

  1. ^ a b c d e Athanassiou, Phoebus (December 2009) Withdrawal and Expulsion from the EU and EMU, Some Reflections (PDF), European Central Bank. Accessed 8 September 2011
  2. ^ Oliver, Tim. "Europe without Britain: Assessing the Impact on the European Union of a British Withdrawal". Stiftung Wissenshaft und Politik. Retrieved 1 March 2014. 
  3. ^ The provision reads:

    "6. The European Council may, on the initiative of the Member State concerned, adopt a decision amending the status, with regard to the Union, of a Danish, French or Netherlands country or territory referred to in paragraphs 1 and 2. The European Council shall act unanimously after consulting the Commission."

  4. ^ "Greenland Out of E.E.C.," New York Times (4 February 1985)
  5. ^ European law mentioning Greenland Treaty
  6. ^ a b Draft European Council Decision on amendment of the European status of the island of Saint-Barthélemy – adoption
  7. ^ "Brussels' Fear of the True Finns: Rise of Populist Parties Pushes Europe to the Right," Spiegel (25 April 2011).
  8. ^ "YouGov poll," YouGov (12 January 2009)
  9. ^ "Poll: Brits want to leave EU," BBC2 (18 March 2009)
  10. ^ Tip Shipman, "Cameron's great gamble pays off: Mail poll reveals voters back Tories' tough stance on economy," MailOnline (10 October 2009).
  11. ^ "YouGov Survey Results: Fieldwork: 8th - 9th September 2010" (pdf). Yougov. 2010-09-10. Retrieved 2010-10-27. 
  12. ^ Tim Shipman "Fury as Cameron rules out EU referendum because we had our say in poll 36 years ago," Daily Mail (8 August 2011).
  13. ^ "MPs supporting EU referendum debate," BBC News (24 October 2011)
  14. ^ "MPs to vote on call for referendum on UK leaving the EU," BBC News (19 October 2011)
  15. ^ Thomas Penny (2011-10-23). "Cameron Seeks Discipline of U.K. Lawmakers as EU Vote Looms". Bloomberg. Retrieved 2011-10-23. "In a YouGov Plc poll published in the Sunday Times today, 66 percent of people questioned said that there should be 'a referendum on Britain’s relationship with the EU'" 
  16. ^ Daniel Boffey and Toby Helm (2012-11-17). "56% of Britons would vote to quit EU in referendum, poll finds". London: The Guardian. Retrieved 2012-11-18. 
  17. ^ Peter Kellner "EU vote: stay in 40%, leave 34%," YouGov (21 January 2013). (Retrieved 28-03-2013)
  18. ^ William Green "Cameron's EU referendum: the 'answer' is out," MSN News (23 January 2013).
  19. ^ Roland Watson "Most voters want Britain to quit EU, poll shows," The Times (25 January 2013).
  20. ^ "Farage says UKIP could hold balance of power in 2015". 10 October 2014. Retrieved 11 October 2014. 
  21. ^ Nicholas Watt (29 June 2012). "Cameron defies Tory right over EU referendum: Prime minister, buoyed by successful negotiations on eurozone banking reform, rejects 'in or out' referendum on EU". guardian.co.uk (London). Retrieved 2012-07-02. "David Cameron placed himself on a collision course with the Tory right when he mounted a passionate defence of Britain's membership of the EU and rejected out of hand an 'in or out' referendum." 
  22. ^ "David Cameron 'prepared to consider EU referendum'". BBC. 1 July 2012. Retrieved 2012-07-02. "Mr Cameron said . . . he would 'continue to work for a different, more flexible and less onerous position for Britain within the EU'." 
  23. ^ Andrew Sparrow (1 July 2012). "PM accused of weak stance on Europe referendum". guardian.co.uk (London). Retrieved 2012-07-02. "Cameron said he would continue to work for 'a different, more flexible and less onerous position for Britain within the EU'." 
  24. ^ "David Cameron promises in/out referendum on EU," BBC News (23 January 2013).
  25. ^ "Qui sommes-nous ?," Union Populaire Républicaine (UPR).
  26. ^ "Pôle de Renaissance Communiste en France (PRCF)  ? Qui sommes nous  ? Que voulons nous  ?," PRCF (Pôle de Renaissance Communiste en France)
  27. ^ "Scottish independence: Irish minister says EU application 'would take time'". BBC. 2013-01-25. Retrieved 2013-02-02. 
  28. ^ Edward, David, "Scotland's Position in the European Union", Scottish Parliamentary Review, Vol. I, No. 2 (Jan, 2014) [Edinburgh: Blacket Avenue Press]
  29. ^ Crawford, James; Boyle, Alan (2012-12-10). "Annex A - Opinion: Referendumon the Independence of Scotland – International Law Aspects". p. 67. Retrieved 2013-02-19. "Part I: Executive summary ... 6.1 Since the rUK would be the same state as the UK, its EU membership would continue. Indeed, the EU treaties implicitly preclude ‘automatic’ withdrawal by a state. There might have to be an adjustment to the UK’s terms of membership to reflect its reduction in territory and population, but this could be done without the UK ceasing to be an EU Member State." 
  30. ^ Crawford, James; Boyle, Alan (2012-12-10). "Annex A - Opinion: Referendumon the Independence of Scotland – International Law Aspects". p. 67. Retrieved 2013-02-19. "Part I: Executive summary ...6. Within the EU, there is no precedent for what happens when a metropolitan part of a current Member State becomes independent, so it is necessary to speculate. ... 6.2 On the face of it, if Scotland had voted for independence it would have been required to accede to the EU as a new state, which would require negotiations on the terms of its membership, including on the subjects of the UK’s current opt-outs. The EU treaties make no provision for succession to membership. Certain provisions of the EU treaties would require amendment. If Scotland were somehow to become an EU member in its own right automatically, it is not clear how adjustments to the relative positions of Member States could be willed into being without negotiations. Nor would it be clear on what terms it would be a member. 6.3 Some have argued that the rights conferred on individuals by EU citizenship might influence the European Court of Justice (ECJ) to somehow resist this outcome. But this is a matter for speculation and does not have a clear precedent in EU law. It would also require the issue to somehow come before the ECJ, which may be unlikely. 7. In any event, Scotland’s position within the EU is likely to be shaped more by any agreements between the parties than by pre-existing principles of EU law." 
  31. ^ "Unionists urged to sign EU letter". The Herald. 2013-01-31. Retrieved 2013-02-05. 
  32. ^ "Scottish Independence: Blair Jenkins answers your questions". BBC. 2013-01-18. Retrieved 2013-02-05. 
  33. ^ Crawford, James; Boyle, Alan (2012-12-10). "Annex A - Opinion: Referendumon the Independence of Scotland – International Law Aspects". Retrieved 2013-02-19. 
  34. ^ "Sturgeon: UK 'arrogant' over Scottish independence". BBC. 2013-02-11. Retrieved 2013-02-19. 
  35. ^ "'Better Together' - Alistair Darling delivers the John P Mackintosh lecture". 2012-11-10. Retrieved 2013-02-05. 
  36. ^ Matthew Holehouse, Political Correspondent (16 February 2014). "Jose Manuel Barroso: nearly impossible for Scotland to join EU". Sunday Telegraph, London. Retrieved 4 September 2014. "Spain, which fears the separation of the Catalonia region, has blocked the accession of Kosovo ... Jose Manuel Barroso, the president of the European Commission ... went on: 'It will be extremely difficult to get the approval of all the other member states to have a new member coming from one member state.' 'We have seen that Spain has been opposing even the recognition of Kosovo, for instance. It’s to some extent a similar case because it’s a new country, and so I believe it’s going to be extremely difficult, if not impossible.'" 
  37. ^ a b Johnson, Simon (27 November 2013). "Spanish PM: Independent Scotland would be kicked out of the EU". The Daily Telegraph (London). 
  38. ^ a b "Scottish independence: Spain warning over EU entry". The Scotsman, Edinburgh. 3 February 2014. Retrieved 4 September 2014. "'They have to resolve a mountain of problems, as Better Together has explained very well,' he said.'You have to achieve candidate status. You have to negotiate 35 chapters . It has to be ratified by the institutions of the EU. It then has to be ratified by 28 national parliaments.'" 
  39. ^ Graeme Murray (February 26, 2012). "Spain will not veto an independent Scotland joining EU". Sunday Express, London. Retrieved 4 September 2014. 
  40. ^ Goodman, Al (12 December 2013). "Political parties announce date for vote on Catalonia independence". CNN (Madrid). 
  41. ^ Nikolaj, Nielsen (17 September 2013). "EU commission: Catalonia must leave EU if it leaves Spain". EUObserver.com. Retrieved 19 September 2013. 
  42. ^ a b Suspension clause, Europa glossary, accessed 1 June 2010

External links[edit]