the Federal Republic of Germany (Amendment) Order, 2011

L.N. 383 of 2011

INCOME TAX ACT

(CAP. 123)

Double Taxation Relief on Taxes on Income with

the Federal Republic of Germany (Amendment) Order, 2011

IN exercise of the powers conferred by article 76 of the Income

Tax Act, the Minister of Finance, the Economy and Investment has

made the following order:-

This title of this order is the Double Taxation Relief on Citation.

Taxes on Income with the Federal Republic of Germany

(Amendment) Order, 2011 and it shall be read and construed as one

with the Double Taxation Relief on Taxes on Income with the Federal S.L. 123.06

Republic of Germany Order, hereinafter referred to as "the principal

Order".

(Article 2)

Protocol

Amending the Agreement of 8 March 2001

between

the Republic of Malta

and

the Federal Republic of Germany

for the Avoidance of Double Taxation

with respect to Taxes on Income and on Capital

The Republic of Malta and the Federal Republic of Germany,

Desiring to conclude a Protocol amending the Agreement of 8 March 2001

between the Federal Republic of Germany and the Republic of Malta for the

Avoidance of Double Taxation with respect to Taxes on Income and on Capital,

Have agreed as follows

Article I

Article 26 of the Agreement shall read as follows

"Article 26

Exchange of Information

(1) The competent authorities of the Contracting States shall exchange such

information as is foreseeably relevant for carrying out the provisions of this

Agreement or to the administration or enforcement of the domestic laws

concerning taxes of every kind and description imposed on behalf of the

Contracting States, of a Land or a political subdivision or local authority thereof,

insofar as the taxation thereunder is not contrary to the Agreement. The exchange

of information is not restricted by Articles 1, 2 and paragraph 2 of Article 27.

(2) Any information received under paragraph 1 by a Contracting State

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shall be treated as secret in the same manner as information obtained under the

domestic laws of that State and shall be disclosed only to persons or authorities

(including courts and administrative bodies) concerned with the assessment or

collection of, the enforcement or prosecution in respect of, the determination of

appeals in relation to the taxes referred to in paragraph 1, or the oversight of the

above. Such persons or authorities shall use the information only for such

purposes. They may disclose the information in public court proceedings or in

judicial decisions. Notwithstanding the foregoing provisions, the information may

be used for other purposes when such information may be used for such other

purposes under the laws of both States and the competent authority of the

supplying State authorises such use.

(3) In no case shall the provisions of paragraphs 1 and 2 be construed so as

to impose on a Contracting State the obligation

a)

to carry out administrative measures at variance with the laws

and administrative practice of that or of the other Contracting State;

b)

to supply information which is not obtainable under the laws or in

the normal course of the administration of that or of the other Contracting

State;

c)

to supply information which would disclose any trade, business,

industrial, commercial or professional secret or trade process, or information,

the disclosure of which would be contrary to public policy (ordre public).

(4) If information is requested by a Contracting State in accordance with

this Article, the other Contracting State shall use its information gathering

measures to obtain the requested information, even though that other State may not

need such information for its own tax purposes. The obligation contained in the

preceding sentence is subject to the limitations of paragraph 3 but in no case shall

such limitations be construed to permit a Contracting State to decline to supply

information solely because it has no domestic interest in such information.

(5) In no case shall the provisions of paragraph 3 be construed to permit a

Contracting State to decline to supply information solely because the information

is held by a bank, other financial institution, nominee or person acting in an agency

or a fiduciary capacity or because it relates to ownership interests in a person.".

Article II

Number 4 of the Protocol to the Agreement shall read as follows

"4. With reference to Article 26

(1) If the requesting competent authority confirms that the requested

information is "foreseeably relevant" to the purposes mentioned in Article 26 of

the Agreement, the requested competent authority shall accept this confirmation

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provided that the request satisfies the following requirements

a)

the identity of the person under examination or investigation;

b)

a statement of the information sought including its nature and the

form in which the requesting Contracting State wishes to receive the

information from the requested Contracting State;

c)

the tax purpose for which the information is sought;

d)

grounds for believing that the information requested is held in the

requested Contracting State or is in the possession or control of a person

within the jurisdiction of the requested Contracting State;

e)

to the extent known, the name and address of any person believed

to be in possession of the requested information;

f)

a statement that the request is in conformity with the law and

administrative practices of the requesting Contracting State, that if the

requested information was within the jurisdiction of the requesting

Contracting State then the competent authority of the requesting Contracting

State would be able to obtain the information under the laws of the requesting

Contracting State or in the normal course of administrative practice and that

it is in conformity with this Agreement;

g)

a statement that the requesting Contracting State has pursued all

means available in its own territory to obtain the information, except those

that would give rise to disproportionate difficulties.

(2) The requested information shall also be "foreseeably relevant" in the

case of a request for information where the name of the person is unknown and the

requesting competent authority confirms to the requested competent authority that

it has reasonable grounds for suspecting the existence of criminal tax matters

involving assets situated or persons resident in the Contracting States. For the

purposes of this paragraph the term "criminal tax matters" means tax matters

involving intentional conduct which is liable to prosecution under the criminal

laws of the requesting Contracting State.

(3) Insofar as personal data are supplied under Article 26, the following

additional provisions shall apply

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.

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c)

Personal data may be supplied only to the competent authorities.

Any subsequent supply to other authorities may be effected only with the

prior approval of the supplying competent authority.

d)

The data-supplying State shall be obliged to ensure that the data

to be supplied are accurate and that they are foreseeably relevant 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, unauthorised alteration and unauthorised disclosure.".

Article III

(1) This Protocol shall be subject to ratification; the instruments of

ratification shall be exchanged as soon as possible in Berlin.

(2) This Protocol shall enter into force on the day of the exchange of the

instruments of ratification. Upon the date of entry into force, this Protocol shall

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have effect in both Contracting States even on taxes levied prior to its entry into

force.

(3) This Protocol shall be an integral part of the Agreement and shall

remain in force for as long as the Agreement itself.

Done in Malta on 17 June 2010 in two originals, each in the German and

English languages, both texts being equally authentic.

TONIO FENECH

BERND BRAUN

For the Republic of Malta

For the Federal Republic of Germany

€0.54

It is hereby declared

Amendments to

have effect.

(a)

that the amendments to the principal Order, as

specified in the Schedule to this Order, have been made with the

the Federal Republic of Germany;

(b) that it is expedient that those amendments should

have effect;

(c)

that the Protocol specified in the Schedule to this

Order has entered into force on the 19th May, 2011.

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