FMLC has offered its views to the Ministry of Justice on whether courts and tribunals other than the Supreme Court and High Court of Judiciary should have the ability to depart from retained EU lase law after the end of the Transition Period. FMLC is not in favour of the suggestion, but says that if MoJ does extend this ability, it should be on the conditions of a stricter test than that currently applied by the Supreme Court. It suggests this should be if the retained EU case law is wrong or otherwise inappropriate in the light of Brexit, and that relevant bodies like FCA should be allowed to provide “amicus briefs” so judges have the full background.
In its response, it cites a number of examples. For instance, it looks at the critical, yet uncertain, boundary between what is a “spot” and what is a “forward”. FSA and then FCA developed a practice of using whether there was a “commercial purpose” as a distinction, and ESMA then provided guidance at EU level. FMLC says it is possible this issue could, though, have gone to the CJEU for interpretation as there was no legislative definition. The CJEU may well, in that case, have adopted a definition that FCA did not agree with and, post Brexit, the question of definition of these terms may have gone to the UK court for interpretation. The court would then surely find it helpful to get guidance on both the technical issues involved and the degree on which their decision should track or reflect the EU decision.