The Supreme Court will rule on Friday on whether the nomination to the European Investment Bank of the former Supreme Court judge, Mr Hugh O'Flaherty, may proceed.
The five-judge court yesterday reserved its decision on an appeal by Mr Denis Riordan, a Co Limerick lecturer, against the High Court's rejection of his challenge to the Government's decision to nominate Mr O'Flaherty for the £147,000-a-year post of vice-president of the EIB.
Mr Riordan, a lecturer in marine technology communications at Limerick Institute of Technology, had taken proceedings arising out of the nomination against the Taoiseach, Mr Ahern; the Government; the Minister for Finance, Mr McCreevy; the Attorney General, Mr Michael McDowell; and Mr O'Flaherty himself. He contended that he and other citizens were entitled to apply for such posts.
In his judgment last month, the President of the High Court, Mr Justice Morris, found the Government did not have to inform the public before filling posts which are paid for by the taxpayer. Such a scenario would lead to the "absurd situation" that the Taoiseach would have to advertise vacancies in the Seanad before making nominations.
In his appeal against that decision yesterday, Mr Riordan argued that the process adopted in making the nomination for the vice-presidency of the EIB was wrong. He said the Government had no power to make a "nomination for appointment".
He argued that the Minister for Finance had interfered in the independent decision-making procedures of the EIB when he told the Dail that Mr O'Flaherty "will be" a vice-president "when" appointed, rather than "may be" a vice-president "if" appointed.
Mr Riordan said the Government was abusing its dominant position by actively and publicly seeking to impose its preferred candidate on to the independent decision-making structures of the EIB, an autonomous institution of the EU.
The appeal was heard by the Chief Justice, Mr Justice Keane, Mr Justice Murphy, Ms Justice McGuinness, Mr Justice Geoghegan and Mr Justice McCracken.
Asked by the judges whether, notwithstanding the non-advertising of the EIB post, Mr Riordan considered he still had the right to apply for such a position, Mr Riordan said he would have this right. But at the time the post was being filled he did not know it was available, because it had not been advertised.
He agreed with the Chief Justice that the only body capable of legally making the appointment was the board of governors of the EIB.
The Chief Justice said the board of governors was under no obligation to accept a proposal from the bank's board of directors. It could appoint someone else from Frankfurt or London and there was nothing the Irish Government could do about it.
While that might be so, it was the Government that had purported to nominate Mr O'Flaherty as a director of the EIB, Mr Riordan responded.
The Chief Justice said it seemed to him that Mr Riordan's main complaint was with the EU Commission in Dublin, or some such body, for failing to advertise the position and set out the process for selection.
Mr Riordan said no such advertising had taken place because the Government had purported to make the nomination. His case was against the Government for its refusal to follow fair procedures in making its selection.
Referring to the High Court decision, Mr Riordan said Mr Justice Morris was wrong in asserting an executive decision had been made about the selection. This was a decision taken by the Minister for Finance.
Mr James O'Reilly SC, with Mr Frank Callanan SC and Ms Nuala Butler, for the State, said the Government had done nothing wrong or irregular. It was entitled to make its views on the matter known to the EIB.