C —

The third group of pleas raises problems which, I will not seek to conceal from the Court, appear to me more delicate. These pleas are based on the fact that the disputed appointment of Mr Dousset is inspired by the desire of the Commission to appoint to this post an official of French nationality and thus its main, if not sole, ground is not the interest of the service but the concern to maintain a geographical balance (since this is the expression in current use) in the posts of Directors in the Directorate-General for Transport. In acting thus, the Commission, according to the applicant, has violated both the principles propounded by the Court's first judgment of 6 May 1969 and by Articles 7 and 27 of the Staff Regulations. As regards the principles propounded by the judgment of 6 May 1969, I do not think that they can be properly relied on in the present case. It is true that in this judgment the Court stated that, as regards the measures taken in respect of officials consequent on the merger of the executives, the concern to maintain them in a post corresponding to their grade must ‘take precedence over considerations relating to the maintenance of a geographical balance in the composition of the staff of the Communities’. It was a common sense solution involving, as it did, a statement that to pronounce a measure as serious as a dismissal the appropriate authority could not base itself on the desire to ensure a better geographical balance in the posts available. But the position of the present case is very different from that which the Court had to consider in 1969. It was not a question of selecting from among officials those who would be dismissed and those who would not. It was a question of selecting from among officials, who were all ino a permanent position, the one who should occupy such and such a post. These two cases are very different and I do not think that the principles propounded by the Court's judgment of 1969 are applicable in the present case. The question remains whether or not geographical considerations have been decisive in the present case. As the Court decided in its judgment of 4 March 1964, Lassalle, only where the qualifications of the candidates are equal can the administration allow nationality to play a ‘decisive role’ but they obviously cannot make it the main or sole criterion. What has been its position in the present case? It is obviously a question on which doubts are possible. The Commission claims that the nationality of Mr Dousset has not played any part in his appointment. Mr Reinarz, on the other hand, sees in the various factors in the file indications to the contrary. He relies first and foremost on a passage in the Court's judgment of 1969 in which it stated that Mr Dousset's predecessor had been kept in his post, I quote, ‘even though he was near the end of his career, mainly to facilitate his replacement at a later date by a servant of the same nationality’. This fact is certainly disturbing, but it does not necessarily show, as the applicant seems to think, that any appointment of a French national to this post is necessarily determined by his nationality. The wording in the Court's judgment is limited, I think, to finding a situation obtaining in 1968 and cannot prejudice the events which have arisen several years later. To see in this fact a presumption it would at least have to be supported by other presumptions. The only one on which the applicant relies is that he could have been appointed by way of transfer whereas Mr Dousset had to be promoted and this cannot be accepted for the reasons which I have already given. Thus in spite of a certain doubt which I shall not conceal from the Court, I propose that it dismiss this argument of the applicant also.