PROTOCOL TO THE AGREEMENT BETWEEN THE FEDERAL REPUBLIC OF GERMANY AND THE REPUBLIC OF HUNGARY FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME AND ON CAPITAL SIGNED ON 28 FEBRUARY 2011
The Federal Republic of Germany and the Republic of Hungary have in addition to the Agreement of 28 February 2011 for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income and on Capital agreed on the following provisions, which shall form an integral part of the said Agreement:
(1) With reference to Articles 3, 4, 8, 13, 14 and 21:
The "place of effective management" is the place where key management and commercial decisions that are necessary for the conduct of the entity's business are in substance made. The place of the effective management will ordinarily be the place where the most senior person or group of persons makes its decisions, and the day-to-day management is conducted, the place where the actions to be taken by the entity as a whole are determined.
(2) With reference to Article 7:
- (a) Where an enterprise of a Contracting State 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) The provision of paragraph (3) is applicable irrespective of limitations by the domestic laws, provided that the deducted expenses are in accordance with the international practice.
- (c) 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 through 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.
- (d) 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 of the Agreement apply.
(3) With reference to Articles 5 and 7:
The application and interpretation of Articles 5 and 7 of this Agreement and, in particular the settlement of any disputes insofar, should be done by using the Commentary on Articles 5 and 7 of the current Model Convention of the OECD. If the Commentary is revised in the future by the OECD, Articles 5 and 7 of this Agreement should be interpreted in the spirit of the revised Commentary, provided this is in accordance with the text of the Agreement.
(4) With reference to Articles 10 and 11:
Notwithstanding the provisions of Article 10 and 11 of this Agreement, dividends and interest may be taxed in the Contracting States in which they arise, and according to the law of that State:
- (a) if they are 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 and under the condition that they are deductible in the determination of profits of the debtor of such income or
- (b) if the distributing company is a Real Estate Investment Trust company or a similar entity that is exempt from corporation tax.
(5) With reference to Article 25:
If in accordance with domestic law personal data are exchanged under this Agreement, the following additional provisions shall apply subject to the legal provisions in effect for each Contracting State:
- (a) The receiving agency may use such data only for the stated purpose and shall be subject to the conditions prescribed by the supplying agency.
- (b) The receiving agency shall on request inform the supplying agency about the use of the supplied data and the results achieved thereby.
- (c) Personal data may be supplied only to the responsible agencies. Any subsequent supply to other agencies may be effected only with the prior approval of the supplying agency.
- (d) The supplying agency shall be obliged to ensure that the data to be supplied are accurate and that they are necessary for and proportionate to the purpose for which they are supplied. Any bans on data supply prescribed under applicable domestic law shall be observed. If it emerges that inaccurate data or data which should not have been supplied have been supplied, the receiving agency shall be informed of this without delay. That agency shall be obliged to correct or erase such data without delay.
- (e) Upon application the person concerned shall be informed of the supplied data relating to him and of the use to which such data are to be put. There shall be no obligation to furnish this information if on balance it turns out that the public interest in withholding it outweighs the interest of the person concerned in receiving it. In all other respects, the right of the person concerned to be informed of the existing data relating to him shall be governed by the domestic law of the Contracting State in whose sovereign territory the application for the information is made.
- (f) The receiving agency shall bear liability in accordance with its domestic laws in relation to any person suffering unlawful damage as a result of supply under the exchange of data pursuant to this Agreement. In relation to the damaged person, the receiving agency may not plead to its discharge that the damage had been caused by the supplying agency.
- (g) Where the domestic law of the supplying agency contains special provisions for the deletion of the personal data supplied, that agency shall inform the receiving agency accordingly. Irrespective of such law, supplied personal data shall be erased once they are no longer required for the purpose for which they were supplied.
- (h) The supplying and the receiving agencies shall be obliged to keep official records of the supply and receipt of personal data.
- (i) The supplying and the receiving agencies shall be obliged to take effective measures to protect the personal data supplied against unauthorised access, unauthorised alteration and unauthorised disclosure.
(6) With reference to Article 26:
If the domestic law of a Contracting State provides for a period of refund applications longer than four years, it is understood that the domestic provision shall prevail.
(7) Legal acts of the European Community:
It is understood that this Agreement shall not affect legal acts of the European Community and corresponding provisions of the Contracting States.
DONE at Budapest on 28 February 2011 in two originals, each in the German, Hungarian and English languages, all three texts being authentic. In the case of divergent interpretation of the German and the Hungarian texts, the English text shall prevail.
FOR THE FEDERAL REPUBLIC OF GERMANY:
FOR THE REPUBLIC OF HUNGARY: