JAPAN - PROCUREMENT OF A NAVIGATION SATELLITE
Document: Original: English JAPAN - PROCUREMENT OF A NAVIGATION SATELLITE Request for Consultations by the European Communities
Date: 1 April 1997
Document codes: WT/DS73/1
Complainant: EU
Respondent: Japan
Dispute stage: Consultation
Agreements cited: Art. III, VI, XII  Government Procurement (GPA)

GPA/D1/1

JAPAN - PROCUREMENT OF A NAVIGATION SATELLITE
Request for Consultations by the European Communities
The following communication, dated 26 March 1997, from the Permanent Delegation of the
European Commission to the Permanent Mission of Japan and to the Dispute Settlement Body, is
circulated in accordance with Article 4.4 of the DSU.
My authorities have instructed me to request consultations with Japan pursuant to Article XXII
of the Government Procurement Agreement and Article4 of the Understanding onRules and Procedures
Governing the Settlement of Disputes regarding a recent procurement tender published by the Ministry
of Transportation (MoT) of Japan to purchase a multi-functional satellite for the installation of a Global
Navigation Satellite System (MSAS) for Air Traffic Management.
Following the publication by the MoT of MSAS specifications in August 1996, the European
Commission raised the concern on several occasions that these specifications refer explicitly to those
of the US WAAS and that a more neutral formulation was requested allowing for extended
interoperability. This would prevent European companies from being discriminated against and allow
them to participate in the tender, if they wanted to do so.
When publishing a call for tender on 15 November 1996, no account was taken of the concerns
raised by the Community. As a result, European bidders had no effective possibility of participating
in the tender and were treated less favourably than suppliers of other Parties. This situation raises
the question of compatibility of the above-mentioned tender and related measures with the Government
Procurement Agreement (GPA), as MoT is covered under Annex I of Appendix I of Japan's commitments
under thisagreement. The European Community considers thatthe direct reference in the specifications
of the tender to the US system is in contravention of the general provision on Non-discrimination under
Article III GPA.
The Community considers, moreover, thatthe directreference inthe specificationsof the tender
to the US system is also in contravention of provisions concerning technical specifications as laid down
in Article VI (3) GPA. This requires inter alia that technical specifications shall be in terms of
performance rather than design and that there shall not be any reference to a particular trademark,
design or type, etc.
Finally, since US WAAS specifications are not public, the reference to such specifications also
appears toinfringe ArticleXII (2) GPA. This provisionrequires thattender documentationshall contain
all information necessary to permit suppliers to submit responsive tenders. Such documentation should
include a complete description of any requirements, including technical specifications, which have to
be fulfilled.
I look forward to receiving your reply to this request and to fixing a mutually acceptable date
for consultations.