PROTOCOL

PROTOCOL TO THE CONVENTION BETWEEN THE FEDERAL REPUBLIC OF GERMANY AND ROMANIA FOR THE AVOIDANCE OF DOUBLE TAXATION WITH RESPECT TO TAXES ON INCOME AND ON CAPITAL SIGNED ON JULY 4, 2001

On signing the Convention between the Federal Republic of Germany and Romania for the Avoidance of Double Taxation with respect to Taxes on Income and on Capital the signatories being duly authorised thereto, have in addition agreed on the following provisions which shall be an integral part of the said Convention:

(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 amount which is attributable to the activity as such 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 that 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 Convention apply. However, if and insofar as those payments are made for a real transfer of know-how, Article 12 of this Convention is applicable.

(2) With reference to Articles 10 and 11:

Notwithstanding the provisions of Articles 10 and 11 of this Convention, dividends and interest may be taxed in the Contracting State 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 the Federal Republic of Germany and
• (b) under the condition that they are deductible in the determination of profits of the debtor of such income.

(3) With reference to Article 26:

If in accordance with domestic law personal data are exchanged under this Convention, the following additional provisions shall apply:

• (a) The receiving Contracting State may use such data only for the stated purpose and shall be subject to the conditions prescribed by the supplying Contracting State.
• (b) The receiving Contracting State shall on request inform the supplying Contracting State about the use of the supplied data and the results achieved thereby.
• (c) Personal data may be supplied only to the responsible authorities. Any subsequent supply to other authorities may be effected only with the prior approval of the supplying Contracting State.
• (d) The supplying Contracting 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 lawshall be observed. If it emerges that inaccurate data or data which should not have been supplied have been supplied, the receiving Contracting State shall be informed of this without delay. That Contracting 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 receiving Contracting 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 Convention. In relation to the damaged person, the receiving Contracting State may not plead to its discharge that the damage had been caused by the supplying Contracting State.
• (g) If the domestic law of the Contracting State provided for special provisions for the erasure of the personal data supplied, that Contracting State shall inform the receiving Contracting 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 supplying and the receiving Contracting States shall be obliged to keep official records of the supply and receipt of personal data.
• (i) The supplying and the receiving Contracting States shall be obliged to take effective measures to protect the personal data supplied against unauthorised access, unauthorised alteration and unauthorised disclosure.

(4) With reference to Article 28:

The provisions of the Fourth Part of the German Law on External Tax Relations (Aussensteuergesetz) or corresponding legislation in Romania are considered to be provisions in the meaning of paragraph (1) of Article 28.

DONE at Berlin on July 4, 2001 in duplicate, each in the German, Romanian and English languages, all three texts being authentic. In the case of divergent interpretation of the German and Romanian texts, the English text shall prevail.

FOR THE FEDERAL REPUBLIC OF GERMANY:

G. WESTDICKENBERG

FOR ROMANIA:

TANASESCU