Vorbehalte und Erklärungen für Vertrag Nr.127 - Übereinkommen über die gegenseitige Amtshilfe in Steuersachen

Art der Erklärung : Erklärungen, Kündigungen, Abweichungen
Datum 24/08/2019

Deutschland

Declarations contained in a letter from the Federal Minister for Foreign Affairs of Germany, dated 28 August 2015, deposited with the Secretary General of the OECD, together with the instrument of ratification, on 28 August 2015 - Or. Engl.

I. Interpretative declaration by the Federal Republic of Germany.

The Federal Republic of Germany makes reference to the spirit and purpose of the Convention drafted under the auspices of the OECD and the Council of Europe: namely, to regulate the exchanges of data in purely tax-related procedures, with the aim of achieving better taxation. It is therefore the understanding of the Federal Republic of Germany that the Convention, in particular Article 4 thereof, covers only the exchange of data in purely tax-related matters, with the consequence that data transmitted on the basis of the Convention may not be used for other purposes, in particular for criminal proceedings that are not related solely to tax crimes, without the consent of the State transmitting the data. The Convention does not cover international legal assistance in criminal and civil matters.

In this connection, the Federal Republic of Germany would also like to emphasise that it is obligated – by its constitution, the Basic Law, by its public policy (ordre public), and as a Contracting Party to the European Convention on Human Rights and other fundamental instruments for the protection of human rights – to uphold minimum standards of human rights; accordingly, data will not be transmitted in proceedings that could lead to the imposition of death penalty or that threaten to violate minimum standards of human rights and due process.

The Federal Republic of Germany believes that its position in this regard is backed up by the Council of Europe’s legal stance on the prohibition of the death penalty and on compliance with minimum standards of human rights. As a result, the Federal Republic of Germany assumes that the present Convention, concluded under the auspices of the Council of Europe, may under no circumstances lead to the imposition of the death penalty or to the violation of minimum standards of human rights. Against this background, it follows that the Convention can be interpreted only in such a way that the data transmitted on the basis of the Convention may under no circumstances be used in proceedings that could lead to the imposition of the death penalty or to the violation of minimum standards of human rights.

II. Declaration on safeguards by the Federal Republic of Germany

With respect to Article 21 and Article 22 of the Convention, the Federal Republic of Germany declares that it shall consider itself obligated to transmit tax data relating to individuals or companies (hereinafter referred to as “data”) only if the receiving Party (hereinafter referred to as the “receiving agency”) complies with the following safeguards:
1. The receiving agency may use the data in compliance with Article 22 and shall be subject to the conditions prescribed by the transmitting agency. The use of data for any purpose not listed in paragraph 1 of Article 4 and paragraph 2 of Article 22 shall be permissible only with the prior consent of the Federal Republic of Germany. This shall apply in particular to the use of such data as evidence before a court dealing with general criminal matters that are not purely tax-related. To this extent the procedures for mutual judicial assistance in criminal matters and, for Member States of the European Union, procedures regarding cross border cooperation in criminal matters, shall remain unaffected.
The Federal Republic of Germany shall not consider itself obliged to transmit tax data if the use of such data would violate the Federal Republic of Germany’s public policy (ordre public) or essential interests within the meaning of paragraph 2 of Article 21 of the Convention.
Insofar as the data transmitted are disclosed in court proceedings or in a court decision, the receiving Party shall ensure that such disclosure will not lead to the imposition or execution of the death penalty against persons whose data were transmitted or to the use of such data, without the consent of the transmitting Party, for other purposes not covered by the Convention.

2. The receiving agency shall document the receipt of the personal data transmitted. At the request of the competent authority of the Federal Republic of Germany, the receiving agency shall provide information on the use of the transmitted data, the results achieved thereby, and the consequences of the use of the data.

3. In the event that inaccurate data, or data which should not have been transmitted, have been transmitted, the receiving agency shall be obliged to correct or delete such data without delay following notification by the transmitting agency.

4. The receiving agency shall inform the person or company whose data were transmitted of the collection of such data in the Federal Republic of Germany. The persons or companies concerned need not be informed if and as long as, on balance, it is considered that the public interest in not informing them outweighs their right to be informed. Such persons or companies must be subsequently informed without delay if the reasons for not informing them no longer apply.

5. With reference to paragraph 3 of Article 4 of the Convention, it is pointed out that the persons or companies whose data are concerned shall, in their request, be informed by the competent German authority as to what data were transmitted, to which receiving agency, and for what purpose. The persons or companies concerned need not be informed if and as long as, on balance, it is considered that the public interest in not informing them outweighs their right to be informed. Such persons or companies must be subsequently informed without delay if the reasons for not informing them no longer apply.

6. The receiving agency shall bear liability in accordance with its domestic law in the event that any persons or companies suffer unlawful damage due to the erroneous use of data transmitted as part of the exchange of data pursuant to this Convention.

7. Where German law provides for specific deadlines for deleting the transmitted data or deadlines for reviewing whether such data should be deleted, the transmitting agency of the Federal Republic of Germany shall inform the receiving agency accordingly. The receiving agency shall ensure compliance with such deadlines. In any case, the transmitted data shall be deleted as soon as they are no longer required for the purpose for which they were transmitted.

8. The receiving agency shall be obliged to take effective measures to protect the transmitted data against unauthorised access, unauthorised alteration and unauthorised disclosure.

9. In accordance with the third sentence of paragraph 2 of Article 22 of the Convention, the persons and authorities referred to in the first sentence of paragraph 2 may, notwithstanding the provisions of paragraph 1, disclose information in public court proceedings or in judicial decisions relating to taxes in question.
The Government of the Federal Republic of Germany interprets the third sentence of paragraph 2 of Article 22 to mean that, the disclosure of such information in public court proceedings or in judicial decisions also includes disclosure in preliminary investigation by a public prosecutor.
Under German Law, confidentiality cannot be guaranteed in all preliminary investigations by public prosecutors, because in Germany the principle of confidentiality may be overridden with reference to the right of access to information not only in court proceedings but also in preliminary criminal investigations.


In Kraft: 01/12/2015 -
Artikel betroffen : -

Declarations contained in a letter from the Federal Minister for Foreign Affairs of Germany, dated 28 August 2015, deposited with the Secretary General of the OECD, together with the instrument of ratification, on 28 August 2015 - Or. Engl.

ANNEX A – Taxes to which the Convention would apply

Preliminary note: Taxes imposed on behalf of the Länder have been classified as taxes imposed on behalf of a Contracting State.

Article 2, paragraph 1.a.i:
Income tax (including wages tax (Lohnsteuer), withholding tax on income from capital (Kapitalertragsteuer), interest income deduction (Zinsabschlag), withholding tax for construction work (Steuerabzug bei Bauleistungen), and special forms of levying income tax in accordance with section 50a of the Income Tax Act).
Corporation tax (Körperschaftsteuer).
Solidarity surcharge (Solidaritätszuschlag).
Ancillary tax payments.

Article 2, paragraph 1.a.ii:
./.

Article 2, paragraph 1.a.iii:
Net worth tax (Vermögensteuer).
Ancillary tax payments.

Article 2, paragraph 1.b.i:
Trade tax (Gewerbsteuer).
Ancillary tax payments.

Article 2, paragraph 1.b.ii:
Contribution to statutory health, long-term care, accident and pension insurance, including pension insurance for farmers and employment promotion.

Article 2, paragraph 1.b.iii.A:
Inheritance tax (Erbschaftsteuer).
Gift tax (Schenkungsteuer).
Substitute inheritance tax (Ersatzerbschaftsteuer).
Ancillary tax payments.

Article 2, paragraph 1.b.iii.B:
Real property tax (Grundsteuer).
Real property tax transfer (Grunderwerbsteuer).
Ancillary tax payments.

Article 2, paragraph 1.b.iii.C:
Import VAT (Einfuhrumsatzsteuer).
Value added tax (Umsatzsteuer).
Ancillary tax payments.

Article 2, paragraph 1.b.iii.D:
Spirits duty (Branntweinsteuer).
Energy duty (Energiesteuer).
Tobacco duty (Tabaksteuer).
Ancillary tax payments.

Article 2, paragraph 1.b.iii.E:
./.

Article 2, paragraph 1.b.iii.F:
./.

Article 2, paragraph 1.b.iii.G:
Aviation tax (Luftverkehrsteuer).
Betting and lottery tax (Rennwett- und Lotteriesteuer).
Taxe on insurance premiums.
Ancillary tax payments.

Article 2, paragraph 1.b.iv:
Real property tax (Grundsteuer).
Ancillary tax payments.


In Kraft: 01/12/2015 -
Artikel betroffen : 2

Declaration contained in a letter from the Federal Minister for Foreign Affairs of Germany, dated 28 August 2015, deposited with the Secretary General of the OECD, together with the instrument of ratification, on 28 August 2015 - Or. Engl.

ANNEX C – Definition of the word "national" for the purpose of the Convention

- All Germans within the meaning of the Basic Law for the Federal Republic of Germany, and
- All legal persons, partnerships and other associations deriving their status as such from the laws in force in the Federal Republic of Germany.


In Kraft: 01/12/2015 -
Artikel betroffen : 3

Declaration transmitted by the Permanent Mission of the Federal Republic of Germany to the OECD to the Secretariat General of the OECD on 24 February 2017 - Or. Engl.

Declaration on the effective date for exchanges of information under the Multilateral Competent Authority Agreement on Automatic Exchange of Financial Account Information.
In Kraft: 24/02/2017 -
Artikel betroffen : 28

Declaration transmitted by the Permanent Mission of the Federal Republic of Germany to the OECD to the Secretariat General of the OECD on 24 February 2017 - Or. Engl.

Declaration on the effective date for exchanges of information under the Multilateral Competent Authority Agreement on the Exchange of Country-by-Country reports.
In Kraft: 24/02/2014 -
Artikel betroffen : 28


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