Official Journal of the European Union

EN

C series

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C/2025/926

17.2.2025

(Case T-669/24)

(C/2025/926)

Language of the case: Bulgarian

Parties

Applicant: ‘Opticoelectron Group’ AD (Panagyurishte, Bulgaria) (represented by: I. Stoynev and M. Krasteva, lawyers)

Defendant: European Border and Coast Guard Agency (Frontex)

Form of order sought

The applicant claims that the Court should:

—annul the decision of Frontex of 24 October 2024 announcing the result of as well as the successful tenderer in open tender procedure FRONTEX/2024/OP/0016 for the provision of surveillance equipment;

—annul the refusal to provide information of 15 November 2024;

—order Frontex to provide the applicant with (1) a copy of the technical offer submitted by ‘Optix’ AD; (2) detailed reasoning for the evaluation of the offer of ‘Optix’ AD against the award criteria, and (3) detailed reports of the evaluation committee on the evaluation of the technical parameters of all offers;

—order an expert report to establish whether the technical offer submitted by ‘Optix’ AD includes any innovations and, more specifically, whether it offered at least a third-generation image intensifier tube and whether that image intensifier tube was manufactured by a manufacturer having a seat based in the European Union or in one of the Schengen associated countries;

—order Frontex to pay the costs of the proceedings.

Pleas in law and main arguments

In support of the action, the applicant relies on three pleas in law.

1.First plea in law: failure to observe the principles of transparency and equal treatment.

—The applicant maintains that the Court should find that the open tender procedure failed to observe the principles of transparency, equal treatment and non-discrimination, enshrined in EU law. It contests the adopted technical criterion consisting in a fourth-generation image intensifier tube, stating that such technology does not exist, and that that criterion is unfounded and inapplicable as well as favours a specific tenderer.

—The applicant claims that that leads to discrimination and unequal treatment, even though it met all other technical and manufacturing requirements under the tender, and maintains that the procedure should be declared unlawful.

2.Second plea in law: misapplication of the evaluation criteria.

—The applicant claims that the products offered by ‘Optix’ AD in the three distinct lots do not meet the minimum technical requirements under the open tender procedure, including the requirement for at least a third-generation image intensifier tube. At the same time, the contracting authority awarded points for an assumed fourth-generation image intensifier tube, even though such technology does not exist. That not only fails to observe the principles of transparency and equal treatment but also discriminates against other participants that strictly complied with the requirements. The contracting authority failed to ensure objectivity by allowing ‘Optix’ AD to receive points for unsuitable products, which is contrary to the applicable EU law and regulations.

—The applicant states that the absence of reasoning for those evaluations and the non-compliance with the technical requirements undermine the legitimacy of the procedure. Furthermore, the contracting authority failed to provide a clear evaluation methodology and to comply with its transparency and objectivity obligation, required under the Financial Regulation and in line with the principles of good administration. On those grounds, the applicant maintains that ‘Optix’ AD should be excluded from the procedure and that legality and equality in respect of the procedure should be ensured.

3.Third plea in law: infringement of the right to good administration – refusal to provide information.

—The applicant claims that Frontex’s refusal to provide complete documentation, including protocols and reasoning for the evaluations, infringes the applicant’s rights of defence in accordance with Article 41 of the Charter of the Fundamental Rights of the European Union. Lack of access to that information precludes the possibility of reviewing the legality of the procedure and identifying potential infringements, and at the same time calls into question the transparency and equality of the evaluation procedure.

—There is no basis for relying on a ‘business secret’, since, in accordance with the case-law of the Court of Justice the European Union, the evaluation criteria and reasoning for decisions taken must be publicly accessible so as to ensure effective judicial protection.

ELI: http://data.europa.eu/eli/C/2025/926/oj

ISSN 1977-091X (electronic edition)

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Language of the case: Bulgarian