High Court of Ireland Decisions

1. This matter comes before the Court on foot of an Order made on the 2nd June 2000 whereby the Applicant was given leave to apply by way of application for Judicial Review for a declaration that the method of selection of the nominee for appointment as Vice President of the European Investment Bank is unfair, unjust and repugnant to Article 40 of the Constitution.

2. The grounds upon which this leave is given are stated in the Order to be as follows:

3. Before addressing the issues in this case I believe that it is appropriate to point out that two of the grounds upon which the Applicant sought leave to seek Judicial Review centred around the suitability of the fourth named Respondent for the post for which he had been nominated by the Government and the suggestion that the motives for making these nominations were improper.

4. Submissions on these points might have been relevant if the Applicant had obtained leave to seek Judicial Review on those grounds. However he did not. Accordingly these matters are of no relevance to the grounds upon which he has been given leave to seek Judicial Review and for that reason, on the objection of the Respondents, I ruled against the Applicant raising these matters during the hearing.

5. The structure and framework of the European Investment Bank has been concisely set out in the Judgment of Kelly J. when leave was granted to the Applicant to seek Judicial Review. It is unnecessary for me to do more than provide a broad sketch of this body. The European Investment Bank (EIB) is a body established under the Treaties of the European Communities. Its members are the member states of the European Union. The statute of the European Investment Bank is laid down in a protocol to treaties of the European Communities. The bank is governed by a Board of Governors, a

6. Board of Directors and a Management Committee. The Board of Governors consists of members designated by the member states. The Management Committee consists of a President and six Vice Presidents who are appointed by the Board of Governors on the proposal of the Board of Directors. The fourth named Respondent has been nominated to one of these positions as Vice President.

7. At the hearing before Mr. Justice Kelly when the Applicant sought leave to make application by way of Judicial Review he accepted that the Government had nominated the fourth named Respondent for this Office. I quote from the approved note of his Judgment provided by Mr. Justice Kelly where he says “It is common case that the Government has nominated the fourth named Respondent for the Office of Vice President of the European Investment Bank.” I do so because during the course of the hearing an effort was made by the Applicant to resile from this acceptance and sought to make the case that it was the Minister for Finance, Mr. Charlie McCreevy and not the Government which had made the nomination. In my view this is not permissible as it was on the basis of this acceptance of the position that the order granting the Applicant leave to seek Judicial Review was made.

8. I am satisfied, as was Mr. Justice Kelly, that the Government was making an executive decision in making this nomination and I do not accept the submission of the Respondent that this was a mere administrative procedure.

9. In essence the Applicant has anchored his case on the complaint that the procedures adopted by the Government in nominating the fourth named Respondent for this position without affording the Applicant an opportunity of applying for the position constituted a breach of Article 40 of the Constitution. The Applicant’ s argument can, I believe, be summarised in the following way. He says that since all citizens are to be held equal before the law then there was an obligation upon the Government to take such steps as might be necessary to inform the public that it was intended to make a nomination to this post so as to enable those interested to apply. It is submitted that the procedure adopted namely the selection of the fourth named Respondent without giving members of the public an opportunity to apply for the post, was a failure on the part of the Government to hold all citizens equal before the law.

10. I am satisfied that as a first consideration the court should consider the jurisdiction which it may have to concern itself with what is, I am satisfied, the performance of an executive function by the Government.

11. The law in this regard is well settled by the Judgment of Fitzgerald C.J. in Boland v An Taoiseach 1974 I.R. 338 which was approved by Finlay C.J. in Crotty v An Taoiseach 1987 IR 713 when he said “Consequently, in my opinion, the courts have no power either express or implied, to supervise or interfere with the exercise by the Government of its executive functions, unless the circumstances are such as to amount to a clear disregard by the Government of the powers and duties conferred on it by the Constitution.”

12. In the course of his Judgment in Crotty v An Taoiseach Finlay C.J. said “The overall provisions concerning the exercise of exclusive powers in external relations do not contain any express provision for intervention by the courts. There is nothing in the provisions of Articles 28 or 29 of the Constitution, in my opinion, from which it would be possible to imply any right in the courts in general to interfere in the field or area of external relations with the exercise of an executive power. This does not mean that the executive is or can be without control by the courts in relation to carrying out its executive powers even in the field of external relations. In any instance where the exercise of that function constituted an actual or threatened invasion of the Constitutional rights of an individual, the courts would have a right and a duty to intervene.

13. Accordingly, it follows in my view that this Court may only exercise a jurisdiction in relation to the Applicant’s complaint if satisfied that the exercise of this function constituted an actual or threatened invasion of the Constitutional rights of the Applicant.

14. As I have already indicated the Applicant has anchored his case on the Constitutional provisions of equality of treatment and claims that this provision requires that in all instances where a selection is being made by the Government to fill a post, any post there is an obligation on it to inform the public so as to enable them to make application for the post.

15. In my view the provisions of Article 40(1) of the Constitution can not be read so as to impose such an obligation upon the Government. The consequences of such an interpretation would, as has been pointed out, lead to such an absurd consequence as to require that the Taoiseach prior to making his nominations to the Senate pursuant to Article 18(3) to inform the public that he proposes to make such nominations and consider applications for this position. It would impose such heavy restrictions upon the operation of Article 28(2) [which provides that the executive power of the State shall be exercised by the Government]. That it would make the day to day business of Government virtually impossible.

16. I cannot accept that the duties imposed by Article 40, which provides for equality of treatment, extend to imposing upon the Government an obligation to inform the public every time it proposes to perform the executive function of making an appointment to any position when to do so would result in creating what I perceive to be a virtually unworkable situation for the Government. That being so, and since I do not accept the Applicant’s interpretation of his rights under Article 40 and since I find that there is no actual or threatened invasion of the Applicant’s constitutional rights I am accordingly satisfied, on the authorities to which I have already made reference, that the Court has no function to intervene in relation to this matter.

17. At the outset the Applicant also relied upon what he described as his Constitutional right to work and to earn a living and he advanced an argument that the failure on the part of the Government to notify him of the availability of this appointment constituted a breach of that right. However, during the course of debate the Applicant expressly withdrew this a Argument. Accordingly, it is unnecessary for me to refer to it.

18. Accordingly I refuse the Applicant the relief sought.