James Bourke

James has strong expertise in EU and UK competition law.

He worked for the Competition Team of the European Commission’s Legal Service from 2008 to 2014, representing the Commission in numerous cases before the European Courts. He has also worked as a référendaire (2003- 2007) to Judge John D. Cooke who was one of the pre-eminent competition specialists at the General Court.

James is a co-author of the chapter on “Enforcement and Procedure” in the upcoming edition of Bellamy & Child “European Union Law of Competition” (8th Edition).  His specific experience includes the following:

Recent litigation

• Case T-892/16 Apple v Commission (ongoing) – member of the Monckton counsel team (led by Daniel Beard QC) representing Apple’s Irish non-resident companies in their annulment action against the Commission’s decision that Ireland granted €13 billion of State aid in the form of tax opinions reducing the companies’ Irish taxable base. Instructed by Freshfields Bruckhaus Deringer.
• Peugeot v SKF and others: Acting for SKF in the follow-on damages action taken by Peugeot in the Competition Appeal Tribunal arising out of the ball bearings cartel (2018 – settled on the eve of trial).
• Acting for Samsung in the appeal by Iiyama to the Court of Appeal relating to the CRT damages action (2017)
• Acting for Apple Inc. in action brought in the High Court by Nokia for infringement of standard essential patents in the mobile telecommunications industry and related FRAND issues (with Meredith Pickford QC and Ligia Ospeciu) (2017 – settled)
• Balmoral Tanks Limited v the CMA [2017] CAT 23: acting for the CMA (led by Rob Williams) in Balmoral’s appeal against the Galvanised Steel Tanks (Information Exchange decision). Trial in July 2017, leading to the rejection of the appeal.

Technology / IP cases

• Acting for Samsung (led by Jon Turner QC and Meredith Pickford QC) in the Unwired Planet litigation regarding standard essential patents in the High Court and Court of Appeal (see, e.g., [2016] EWCA Civ 489). James acted as sole counsel for Samsung in a contested specific disclosure application in the High Court ([2015] EWHC 3137).
• Joined Cases C-403/08 and C-429/08 Football Association Premier League (FAPL) v Murphy (ECLI:EU:C:2011:631): preliminary reference from the High Court regarding territorial limitations imposed by the FAPL on national broadcasters showing Premier League football games. Represented the Commission as sole competition counsel before the Grand Chamber of the CJEU.
• Joined Cases T-148/10 and T-149/10 Hynix: challenge to the Commission’s Article 9 commitments decision relating to the alleged Rambus “patent ambush” on standard essential patents relating to DRAM.
• Advising as a member of the Commission’s Legal Service on the Qualcomm investigation arising from complaints that Qualcomm’s licensing policy with respect to standard essential patents breached Article 102.
• Advising as a member of the Commission’s Legal Service on the “Internet Explorer” Article 102 case which led to the Microsoft browser commitments decision.

Pharmaceuticals

James has unique experience both advising private clients and acting for the European Commission on a range of pharmaceutical cases.

He is the author of the chapter on the United Kingdom in “Antitrust in Pharmaceutical Markets & Geographical Rules of Origin” (Springer) (October 2017).

His cases include:

• Advising Teva on complex competition law issues arising from an Article 101 TFEU case.
• Acting for a major US pharmaceuticals company with respect to allegations of abuse of dominance in the UK in the early stages of High Court litigation (pre-settlement).
• Case C-457/10 P AstraZeneca v Commission (ECLI:EU:C:2012:770) and Case T-321/05 AstraZeneca v Commission (ECLI:EU:T:2010:266): defending the Commission’s Article 102 decision which found that AstraZeneca abused its dominant position by making misleading representations to patent authorities and by deregistering Losec capsules.
• Case T-472/13 Lundbeck v Commission (and related cases): defending the Commission’s first Article 101 infringement decision with respect to patent settlement agreements.
• Advising as a member of the Commission’s Legal Service with respect to the investigation under Articles 101 and 102 into patent settlement agreements between Servier and generic companies.

Article 101 / Chapter I advisory

• Acting for a complainant in the CMA’s investigation into Ping’s online sales restrictions on retailers (led by Anneli Howard).  This led to the CMA’s decision of August 2017 to fine Ping £1.45 million for breaching UK and EU competition law.
• Providing advice and drafting letters before action regarding online sales restrictions by a major manufacturer.
• Advising the Payment Systems Regulator with respect to its use of competition law powers (led by Rob Palmer).
• Advising a major aviation company with respect to an IP licensing agreement.
• As a member of the Commission’s Legal Service, advised on the Horizontal Cooperation Guidelines (OJ C 11, p. 1 of 14 January 2011).

Cartel investigations / litigation

• Case C-37/13 P Nexans v Commission (ECLI:EU:C:2014:2030): representing the Commission in the appeal against the judgment of the General Court concerning the legality of the Commission’s inspection decision (power cables cartel).
• Represented the Commission before the European Courts in numerous cartel cases, including Case C-494/11 P Otis (ECLI:EU:C:2012:356) and T-141/07 a.o. Otis ([2011] ECR II-4977) (elevators and escalators cartel); Case C-679/11 P Alliance One and Case T-38/05 Agroexpansion (Spanish tobacco cartel); Case T-40/10 Elf Aquitaine (ECLI:EU:T:2014:61), T- 30/10 Reagens (ECLI:EU:T:2014:253), Joined Cases T-23/10 and T-24/10 Arkema (ECLI:EU:T:2014:62) (heat stabilisers cartel).
• Advising Tesco with respect to the OFT’s dairy products investigation (while at Freshfields).

Telecommunications

Cases include:

• Acting for TalkTalk with respect to the 08 numbers (ladders) remittal hearing before the CAT (the hearing was ultimately vacated).
• Advising as a member of the Commission’s Legal Service on the early phases of the Hutchison 3G UK / Telefonica Ireland case (M.6992).
• Advising as a member of the Commission’s Legal Service on the T-Mobile/Orange merger decision (M.5650).

Cases include:

• Hampshire v The Board of the Pension Protection Fund [2016] EWCA Civ 786: EU law challenge on behalf of Mr Hampshire to the statutory cap on PPF compensation under the Pensions Act 2004 (led by Gerry Facenna QC). The Court of Appeal found in favour of Mr Hampshire but also referred questions to the CJEU (Case C-17/17, pending).
• R. (on the application of Greenpeace Ltd) v Secretary of State for Environment, Food and Rural Affairs [2016] EWHC 55 (Admin): representing Greenpeace (led by Kassie Smith QC) in a judicial review of the UK’s implementation of the new Common Fisheries Policy before the High Court.
• R (Solar Century Holdings Ltd and others) v Secretary of State for Energy and Climate Change [2014] EWHC 3677 (Admin): assisting Robert Palmer (during pupillage) in this judicial review of the Secretary of State’s decision to close the Renewables Obligation to new large-scale solar PV generation.
• Advising a regulatory authority on possible litigation relating to Francovich damages.
• Acting in child care age assessment cases before the High Court.

Between 2003 and 2007, James worked as a référendaire to Judge John D. Cooke at the General Court of the European Union. He has worked on a broad range of EU law issues

1999-2000: Harvard Law School (Cambridge, US) – LL.M.

1997-1998: College of Europe (Bruges, Belgium) – Masters in EU Law.

1993-1997: Trinity College (Dublin, Ireland) – LL.B. (First Class Honours in both final years).

Qualifications: New York Attorney (2001); Irish Solicitor (2004); English Solicitor (2007).

Languages: French (fluent); Irish (fluent).

Competition Law: “He is a very detailed and meticulous guy, who is the man for complicated issues.” – Chambers UK, 2018

Leading junior in Competition: ‘‘An outstanding junior, experienced far beyond his year of call.’’ – Legal 500, 2017

James is co-author of the Enforcement and Procedure chapter in the upcoming edition of Bellamy & Child “European Union Law of Competition ” (8th Edition).

Antitrust in Pharmaceutical Markets & Geographical Rules of Origin, published by Springer International Publishing (October 2017). James Bourke wrote the chapter entitled Antitrust in Pharmaceutical Markets – United Kingdom.