PROTOCOL
The Federal Republic of Germany and the Republic of Kazakhstan have agreed at the signing at Bonn on 26 November 1997 of the Agreement between the two States for the avoidance of double taxation with respect to taxes on income and on capital upon the following provisions which shall form an integral part of the said Agreement:
(1) 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 remuneration 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 of an enterprise of a Contracting State 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 of the Agreement apply.
(2) With reference to Article 12:
Notwithstanding the provisions of paragraph (2) of Article 12 the beneficial owner of the royalties for the use of, or the right to use, industrial, commercial or scientific equipment mentioned in paragraph (3) of Article 12 may elect to be taxed as if the right or the property in respect of which such royalties are paid were effectively connected with a permanent establishment or fixed base in that State. In such case the provisions of Article 7 or Article 14, as the case may be, shall apply in determining the income and deductions (including depreciation) attributable to such right or property.
(3) With reference to Article 26:
To the extent that personal data of an individual are exchanged under this Agreement and in accordance with domestic legal provisions, the following additional provisions shall apply, regard being had to the legal provisions applicable to the respective Contracting State:
- (a) The data-receiving State may use such data only for the stated purpose and shall be subject to the conditions prescribed by the data-supplying State.
- (b) The data-receiving State shall on request inform the data-supplying State 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 competent authority of the data-supplying State.
- (d) The data-supplying State 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 data-receiving State shall be informed of this without delay. That State shall be obliged to correct or erase such data.
- (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 data-receiving State 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 data-receiving State may not plead to its discharge that the damage had been caused by the data-supplying State.
- (g) If the domestic law of the data-supplying State provides for special provisions for the erasure of the personal data supplied, that State shall inform the data-receiving State 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 Contracting States shall be obliged to keep official records of the supply and receipt of personal data.
- (i) The data-supplying and the data-receiving States shall be obliged to take effective measures to protect the personal data supplied against unauthorised access, un-authorised alteration and unauthorised disclosure.
(4) With reference to Article 27:
In cases of paragraph (2) of Article 10, paragraphs 2 and 3 of Article 11, and paragraph (2) of Article 12 in which payments of dividends, interest and royalties are taxable at limited rates or not taxable in the State of source, each Contracting State provides for procedures that the payer can make the aforementioned payments withholding the tax only at the rates given in the relevant Article or not withholding any tax.
(5) With reference to Article 28:
This Agreement shall not be interpreted to mean that the Federal Republic of Germany is prevented from levying taxes on amounts which are to be included in the items of income of a resident of the Federal Republic of Germany under the Fourth Part of the German Law on External Tax Relations.
(6) With reference to Article 31:
If the instruments of ratification will not be exchanged until December 31, 1998 the Agreement shall have effect in both Contracting States:
- (a) in the case of taxes withheld at source, in respect of amounts paid on or after the first day of January of the calendar year in which the Agreement entered into force;
- (b) in the case of other taxes, in respect to taxes levied for periods beginning on or after the first day of January of the calendar year in which the Agreement entered into force.