PROTOCOL

PROTOCOL TO THE AGREEMENT BETWEEN THE FEDERAL REPUBLIC OF GERMANY AND GEORGIA FOR THE AVOIDANCE OF DOUBLE TAXATION WITH RESPECT TO TAXES ON INCOME AND CAPITAL OF 1 JUNE 2006

The Federal Republic of Germany and Georgia have, in addition to the Convention of 1 June 2006 for the avoidance of double taxation with respect to taxes on income and on capital, agreed on the following provisions:

(1) For the purposes of this Convention, in the case of the Federal Republic of Germany, the terms "a Contracting State" and "the other Contracting State" also include the Länder.

(2) With reference to Article 7:

• (a) Where an enterprise of a Contracting State sells goods or merchandise or carries on business in the other Contracting State through a permanent establishment situated therein, the profits of that permanent establishment shall not be determined on the basis of the total amount received therefore by the enterprise but only on the basis of the amount which is attributable to the actual activity of the permanent establishment for such sales or business.
• (b) In the case of contracts, in particular for the survey, supply, installation or construction of industrial, commercial or scientific equipment or premises, or of public works, where the enterprise has a permanent establishment in the other Contracting State, the profits of such permanent establishment shall not be determined on the basis of the total amount of the contract, but only on the basis of that part of the contract which is effectively carried out by the permanent establishment in the Contracting State in which it is situated. Profits derived from the supply of goods to that permanent establishment or profits related to the part of the contract which is carried out in the Contracting State in which the head office of the enterprise is situated shall be taxable only in that State.
• (c) Payments received as a consideration for technical services, including studies or surveys of a scientific, geological or technical nature, or for engineering contracts including blue prints related thereto, or for consultancy or supervisory services shall be deemed to be payments to which the provisions of Article 7 or Article 14 apply.

(3) With reference to Articles 10 and 11:

Notwithstanding the provisions of Articles 10 and 11, dividends and interest may be taxed in the Contracting State in which they arise and according to the laws of that State, provided that they are:

• (a) derived from rights or debt-claims carrying a right to participate in profits, including income derived by a silent partner (stiller Gesellschafter) from his participation as such, or from a loan with an interest rate linked to borrower's profit (partiarisches Darlehen) or from profit sharing bonds (Gewinnobligationen) within the meaning of the tax law of the Federal Republic of Germany and;
• (b) deductible in the determination of profits of the debtor of such dividends and interest.

(4) With reference to Article 18:

The term "similar payments" as used in this Article shall also include any stated sum payable periodically at stated times during life or during a specified or ascertainable period of time under an obligation to make the payments in return for adequate and full consideration in money or money's worth.

*(5) With reference to Article 26:

To the extent that personal data will be communicated under Article 26 of the Convention, the following provisions apply:

• (a) The use of data by the receiving office is only permissible in agreement with paragraph (2) of Article 26 of the Convention and for the purpose Stated by the communicating office and only under the conditions prescribed by the communicating office.
• (b) Irrespective of the provisions of paragraph (2) of Article 26 of the Convention, the information can be used for other purposes if they can be used for these other purposes under the laws of both Contracting State and the responsible authorities of the communicating Contracting State has given consent. Without prior consent of the responsible authorities of the communicating Contracting State, use for other purposes is only permissible if it is necessary in a specific case to avoid a threatening danger to life, bodily integrity or the personal freedom of a person or significant assets and there is danger in delay. In this case the responsible authority of the communicating Contracting State must immediately be asked for post-facto consent to the change of purposes. If consent is denied, the continued use of this information for the other purpose is prohibited any damage cause by the change in the use of the information must be compensated for.
• (c) The communicating office is obligated to show consideration for the accuracy of the data to be communicated and its planned collection in the sense of sub-paragraph (1) of paragraph (1) of Article 26 of the Convention and its proportionality with respect to the purposed pursued by that communication. Provisionally collectable are those data, if there is a serious option in the concrete case that the other Contracting State has a right to taxation and there are no indications that the data of the responsible authorities are already known to the other Contracting State or that the responsible authorities of the other Contracting State become aware of it without the disclosure of the object of the tax law. If it proves that incorrect data or data that may not be communicated were in fact communicated, this must be communicated to the receiving office. This office is obligated to undertake the correction or deletion of such data. If the data has been communicated without a request, the receiving office must check immediately to determine whether the data are necessary for the purpose for which they were sent it must immediately delete any unnecessary data.
• (d) The receiving office will inform the communicating office on request in the specific case for the purpose of disclosure of information to the affected party concerning the use of the data and the results achieved by this use.
• (e) The receiving office must inform the affected party concerning the collection of data by the communicating office unless the data were sent unsolicited. The information can be withheld to the extent that and as long as a weighing of interests indicates that the public interest in withholding this information outweighs the informational interest of the affected party.
• (f) The affected person must be informed, on request, concerning the data about his/her person that have been communicated as well as the intended use of this information. Point (e) of sub-paragraph (2) shall apply accordingly.
• (g) If someone is harmed in violation of the law in connection with the communications in the framework of the exchange of data under this Convention, the receiving office is liable to that person under the terms of its domestic law. It cannot appeal in relation to the damaged party to the damage being caused by the communicating Contracting State.
• (h) The communicating and receiving offices are obligated to keep records on the communication and reception of the personal data.
• (i) To the extent that there are specific rules for the deletion of the communicated personal data that applies to the communicating office under domestic law, this office will inform the receiving office. In any case the personal data that has been communicated must be deleted as soon as it is no longer required for purpose for which it was communicated.
• (j) The communicating and receiving offices are obligated to effectively protect the communicated personal data from unauthorized access, unauthorized modification and unauthorized disclosure.

(6) With reference to Article 28:

The provisions of the national law on the prevention of tax evasion and tax fraud within the meaning of this provision also include in the case of the Federal Republic of Germany the attribution of passive income derived from abroad.