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Cite as: [2000] IESC 35

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Riordan v. An Taoiseach [2000] IESC 35 (21st July, 2000)



175 & 181/2000







JUDGMENT of the Court delivered the 21st day of July 2000 by Keane C.J. Introduction

1. On the 12th May last, the third named respondent purported to nominate the fourth named respondent to the position of Vice-President of the European Investment Bank. The court has been informed that the nomination is at present pending before the Board of Directors of the European Investment [*2] Bank and that, as of now, the Board has not decided whether to propose the fourth named respondent’s name, along with those of other candidates purportedly nominated, to the Board of Governors.

2. On the 2nd June last the High Court (Kelly J.) gave leave to the applicant to apply by way of an application of judicial review for the following relief:-

“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 on the grounds

- the salary of Vice-President of the European Investment Bank is paid by the taxpayers of the European Union,

- as a citizen of the European Union and under Article 40 of the Irish Constitution, I have a right to the opportunity of applying for the position;

- in The State (Quinn) .v. Ryan (1965) IR 70 at p. 122 Ó Dálaigh C.J. stated:
‘It was not the intention of the Constitution in guaranteeing the fundamental rights of the citizen that these rights should be set at naught or [*3] circumvented. The intention was that rights of substance were being assured to the individual and that the courts were the custodians of these rights. As a necessary corollary it follows that no one can with impunity set these rights at naught or circumvent them, and that the court ‘s powers in this regard are as ample as the defence of the Constitution requires.’

“My fundamental right as a citizen to have the opportunity to apply for a position that is paid out of public funds has not been vindicated by the process adopted by the respondents.”

3. A statement of opposition having been filed on behalf of the first, second third and fifth named respondents, the matter came on for hearing before Morris P. In a written judgment, delivered on the 12th June, he dismissed the applicant’s claim on the ground that the purported nomination by the Government of the third named applicant was an executive function of the Government and one in respect of which the court could only exercise its jurisdiction if satisfied that the exercise of the function constituted an actual or threatened invasion of his constitutional rights. Having stated that the applicant had anchored his case on the constitutional provisions of equality of treatment [*4] and had claimed that, where a selection was being made by the Government to fill any post, there was an obligation on it to inform the public so as to enable them to apply for the post, the learned President said that in his view the provisions of the Constitution could not be read so as to impose such an obligation upon the Govermnent.

4. From that decision, the applicant has now appealed to this court. The first, second, third and fifth named respondents (hereafter “the State respondents” ) have cross appealed on the ground that, as they submit, the applicant had no locus standi to bring the application in the first place.

The European Investment Bank

5. Article 266 of the Treaty of Rome provides that: “A European Investment Bank is hereby established; it shall have legal personality.

“The members of the European Investment Bank shall be the member states.
“The statute of the European Investment Bank is laid down in a protocol annexed to this Treaty.”

[*5] The protocol has been amended by subsequent treaties of the European Union. Article 3 provides that:-

“In accordance with Article 198D [Now Article 266] of the Treaty, the following shall be members of the Bank...”

6. There follow the names of the fifteen member states of the European Union, including Ireland.

7. Article 4 provides:-

“The capital of the bank is to be ECU 62013 million, subscribed by the member states in defined proportions. The member states are to be liable only up to the amount of their share of the capital subscribed and not paid up.

It follows that the member states, including Ireland, are effectively the shareholders of the Bank.

Article 8 provides that:-

“The Bank shall be directed and managed by a Board of Governors, a Board of Directors and a Management Committee.”

[*6] Article 9 provides that the Board of Governors is to consist of ministers designated by the member states: it is not in dispute that the third named state defendant is the minister at present designated by Ireland.

8. Article 11 sets out the powers of the Board of Directors and provides that it is to consist of 25 directors (of whom one is to be nominated by Ireland) and 13 alternates.

9. Article 12 provides that each Director is to have one vote on the Board of Directors and that, save as otherwise provided in the protocol, decisions of the Board of Directors are to be taken by a simple majority of the members entitled to vote.

10. Article 13 provides that:-

1. The Management Committee shall consist of a president and seven vice-presidents appointed for a period of six years by the Board of Governors on a proposal from the Board of Directors. Their appointments shall be renewable. The Board of Governors, acting unanimously, may vary the number of members on the Management Committee.


2. On a proposal from the Board of Directors adopted by a qualified majority, the Board of Governors may, acting in its turn by a qualified majority, compulsorily retire a member of the Management Committee.

3.. The Management Committee shall be responsible for the current business of the bank, under the authority of the President and the supervision of the Board of Directors.”

11. It is not in dispute that the President and six Vice-Presidents are entitled to substantial remuneration during their terms in office. It is also not in dispute that, because there are eight members only of the Management Committee, an arrangement has been entered into between Ireland and two other member states, i.e. Denmark and Greece, that each of them will put forward a candidate for appointment as Vice-President every third year and that the other two member states will support the nomination of the member state putting forward the name. It is also not in dispute that the remaining members of the Board of Directors and the Board of Governors will normally accept the name of the person put forward for appointment in this manner and that he or she will, in due course, be appointed by the Board of Governors on the proposal of the Board of Directors.


The applicant’s claim

12. The applicant submits and the respondents do not dispute that the only body that has any legal function in relation to the appointment of a vice-president of the Bank is the Bank itself, acting through its Board of Governors on a proposal by the Board of Directors. None of the state respondents have any legal function in relation to the appointment, with the exception of the third named respondent who, as a member of the Board of Governors, is entitled to vote on the proposal of the Board of Directors. While the action of the third named state respondent in putting forward the name of the fourth named respondent has been described as a “nomination “, it is clear that it is of no legal effect: it is no more than an expression of the wish of one of the shareholders of the Bank that a particular candidate should be appointed to the position in question. The arrangement or understanding that exists between three shareholders of the Bank which would, in the normal course of events, have led to the appointment by the Board of Governors of the fourth named respondent on the recommendation of the third named respondent is of no legal significance. The applicant’s claim, accordingly, is not that the state respondents have acted in breach of the Constitution in the discharge of an executive function in a manner which would warrant intervention by the High Court. His claim is that in purporting to “nominate” the fourth named [*9] respondent to the position without advertising the fact that the vacancy existed, it effectively deprived other persons, including himself, of an opportunity to apply for, and be considered for, appointment to the position. He submits that, in practical terms, the effect of the actions of the state respondents, having regard to the weight which would naturally be attached to such a recommendation coming from one of the shareholders in the bank and the misleading use, as he puts it, of the expression “nominated” was to deprive other citizens, including himself, of the right to apply for, and be considered for, the post. This, he says, was in breach of the provisions of Article 40.1 of the Constitution, requiring that all citizens should, as human persons, be held equal before the law.

13. In reply, it was submitted on behalf of the state respondents that the second and third named respondents, as a shareholder and governor of the Bank respectively, were entitled as a matter of law to make known to the Bank the name of a person whom they considered suitable for appointment to the position of Vice-President of the Bank. The courts, they said, were only entitled to interfere with the Government in the exercise of its executive functions where it was clearly established that the Government were acting in breach of the provisions of the Constitution. That, they said, applied with even greater force in a case such as the present where the executive were doing no [*10] more than transmitting their views as to that appointment to another body in which was vested the right to make a particular appointment. Since the applicant could not point to any constitutional right, express or implied, which he enjoyed as a citizen to be informed of the vacancy in the position before the Government as shareholders or the Minister for Finance as Governor made their views known to the Bank, it followed that it had not been established that the actions of the latter were in any way in breach of the Constitution.

The applicable law

In Boland .v. An Taoiseach (1974) IR 338, Fitzgerald C.J. said:

“... 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 upon it by the Constitution.

14. Griffin J. in his judgment, in the same case, having referred to Articles 15.2.1, Article 28.2 and Article 34.1 said that:

“In my view, these Articles demonstrate that the Oireachtas, and the Oireachtas alone, can exercise the legislative power of [*11] Government; that the Government, and the Government alone, can exercise the executive power of Government; and that the judicial power of Government can be exercised only by judges duly appointed under the Constitution in courts established by law under the Constitution...
“By the Constitution the Government is expressly made responsible to Dáil Eireann: see s. 4, sub-s. 1 of Article 28. Counsel for the defendant argued that in no circumstances may the courts interfere with the Government in the exercise of its executive functions ... In the event of the Government acting in a manner which is in contravention of some provisions of the Constitution, in my view it would be the duty and right of the courts, as guardians of the Constitution, to intervene when called upon to do so if a complaint of a breach of any of the provisions of the Constitution is substantiated in proceedings brought before the courts.”

15. These authoritative statements of the law as to the separation of powers are the logical consequence of what was said by O’Byrne J., speaking for the former Supreme Court, in Buckley .v. Attorney General (1948) IR 3, as follows:-

[*12] “The manifest object of [Article 6] was to recognise and ordain that, in this State, all powers of Government should be exercised in accordance with the well recognised principle of the distribution of powers between the legislative, executive and judicial organs of the State and to require that these powers should not be exercised otherwise. The subsequent Articles are designed to carry into effect this distribution of powers.”

16. The restraint required of the courts by these principles is mirrored by the restraints which the Constitution also imposes on the legislature and executive intrenching on the exercise of judicial power. The need for such restraint is clearly even greater where, as here, the High Court was invited to declare unlawful a recommendation, having no effect in law, conveyed by the executive to another body. The Government collectively or individual ministers may, over a huge area of activity, indicate their wishes or preferences to other persons or bodies and it would be a remarkable and novel step for a court to take it upon itself to declare political decisions of this nature unlawful.

17. However, it is not necessary in this case to express any concluded view as to whether circumstances could ever arise in which the mere expression of an opinion or a recommendation by a minister or the Government collectively [*13] as to how another body might discharge a particular function could be successfully challenged on the ground that it was in breach of the Constitution. In this case, the applicant has failed to demonstrate that the putting forward of the fourth named candidate for the vacancy in question and the announcement to that effect by the third named state respondent is in breach of any of the provisions of the Constitution.

18. The applicant has relied in this connection on Article 40.1 of the Constitution which provides that:-

“All citizens shall, as human persons, be held equal before the law. This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.

19. The applicant contends that the actions of the state respondents in forwarding the name of the fourth named candidate for appointment, making a public announcement that they had done so and describing their action as a “nomination” without first advertising the existence of a vacancy and inviting the public, including the applicant, to apply for the post was in violation of the assurance contained in this article that all citizens, as human persons, will be held equal before the law. If this argument is well founded, it would mean [*14] that in addition to the fundamental rights expressly recognised by the Constitution, each citizen enjoys a further right, not specified anywhere in the Constitution, to be informed of any vacancy in the public service of the State or the European Union before the executive indicates any preference as to how it should be filled. Not surprisingly, no authority has been cited in support of the proposition that such an implied right may be spelled out from the provisions of Article 40.1.

In Quinn’s Supermarket .v. Attorney General (1972) IR 1, Walsh J. said:-
“[Article 40.1] is not a guarantee of absolute equality for all citizens in all circumstances, but it is a guarantee of equality as human persons and (as the Irish text of the Constitution makes quite clear) is a guarantee related to their dignity as human beings and a guarantee against any inequalities grounded upon an assumption, or indeed a belief that some individual or individuals or classes of individuals, by reason of their human attributes or their ethnic or racial, social or religious background, are to be treated as the inferior or superior of other individuals in the community. This list does not pretend to be complete, but it is merely intended to illustrate the view that this guarantee refers to human persons for what they are in themselves rather than to any [*15] lawful activities, trades or pursuits which they may engage in or follow.

It is unnecessary, in the present case, to consider the limitation on the guarantee of equality before the law indicated in the last sentence of this passage, which has been criticised by some commentators. It is sufficient to say that even the most expansive construction of Article 40.1 could not support the proposition that the guarantee of equality required the imposition of such constraints on the executive in making recommendations of this nature.

Reference pursuant to Article 234

The claimant also submitted that the court should refer a number of issues for interpretation to the European Court of Justice pursuant to Article 234 of the Treaty of Rome. It is unnecessary to set out in detail the questions which the applicant says should be referred to that court. It is sufficient to say that the issue as to whether this court should grant the declaration sought by the applicant falls to be determined solely by reference to Irish national law. There is consequently no occasion for the exercise by the court of the Article 234 jurisdiction. It is almost superfluous to add that the manner in which the Board of Governors and the Board of Directors of the [*16] Bank discharge the duties imposed on them under the protocol are matters on which this court has no competence to pronounce: the only bodies, if any, in which such a jurisdiction is vested are the relevant institutions of the European Union, i.e. the Commission, the Court of First Instance and the Court of Justice.

Locus Standi

It was also submitted on behalf of the state respondents that the applicant had no locus standi to bring the present application. Since the court, having heard full arguments on the substantive issue raised by the applicant, is satisfied that he cannot succeed, it is unnecessary to say anything further on that issue.

The court will dismiss the appeal and affirm the order of the High Court.

© 2000 Irish Supreme Court

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