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James Bourke

Call: 2014 | 2020 (Ireland) | 2001 (New York Attorney)

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    Introduction

    James is a competition law specialist with strong experience in EU law. He also has a particular interest in public law and regularly acts for the Government as a panel member. He is recommended as a leading junior for Competition Law by Chambers and Partners and Legal 500:

    “Hugely knowledgeable about competition law and provides great advice… He has a level of wisdom far beyond his year of call.” –  Legal 500, 2023

    James is fantastically responsive and super hard- working.” “You’re getting serious bang for your buck with James.” – Chambers UK, 2021

    A former référendaire at the General Court of the EU, James was a member of the European Commission’s Legal Service for 5 years. He has also worked as a solicitor at a leading London law firm.

    Recent and significant cases include:

    • Acting for DAF in the Trucks competition damages litigation, in particular in the first trial before the CAT (May-June 2022).
    • Acting for Apple in its successful appeal to the General Court of the EU against the European Commission’s State aid decision alleging that Ireland granted €13 billion of aid to Apple ( now on appeal to the CJEU).
    • Appearing for the European Commission in its intervention before the Court of Appeal in the Flynn / Pfizer case excessive pricing case (November 2019).
    • Acting for First MTR in the ongoing Gutmann collective proceedings claim, led by Tim Ward KC.
    • News
    • Competition litigation (including state aid)

      James has strong expertise in EU and UK competition law and frequently appears in the specialist Competition Appeal Tribunal, the High Court and Court of Appeal, covering the full spectrum of competition litigation including damages actions, challenges to regulatory decisions and class actions. He has considerable experience of cases across numerous industry sectors, but has particular expertise in the Pharmaceutical and Technology, Media and Telecommunications sectors.

      James 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, including the AstraZeneca Article 102 TFEU litigation, the Lundbeck “pay for delay” cases (at the General Court), and the Football Association Premier League (Mrs Murphy) preliminary reference. 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.

      He co-authored (with Tim Ward KC) the chapter on “Enforcement and Procedure” in the edition of Bellamy & Child “European Union Law of Competition” (8th Edition).  His specific experience includes the following:

      Cases

      Current and recent cases include:

      • Royal Mail and BT v DAF: acting for DAF (with Daniel Beard KC and Daisy Mackersie) the first competition damages trial in Trucks (May-June 2022).
      • Flynn / Pfizer v CMA: appearing for the European Commission (unled) in its amicus intervention before the Court of Appeal.
      • Case C-465/20 Apple v Commission – acting for Apple (with Daniel Beard KC and Ligia Osepciu) against the European Commission in its appeal against the General Court’s state aid judgment.
      • Gutmann v First MTR South Western Trains and others: acting for one of the respondents in Mr Gutmann’s proposed collective proceedings with respect to boundary fares.
      • Henderson & Jones v Armstrong: acted unled for the Claimant in a competition damages action commenced in 2021 seeking compensation arising from the Defendants’ participation in the Drawers cartel.
      • Unlockd v Google: acting for Google in the High Court with respect to Unlockd’s allegations that Google’s app store policies breached competition law.
      • 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.
      • IPCom v Vodafone: acting for IPCom in its claim that Vodafone has failed to take a FRAND licence to IPCom’s standard essential patents.
      • 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).
      • Ping v CMA: Acting for the complainant in the CMA’s investigation into Ping’s online sales restrictions on retailers. This led to the CMA’s decision of August 2017, upheld by the Court of Appeal in January 2020.
      • Iiyama: acting for Samsung in the appeal by Iiyama to the Court of Appeal relating to the CRT damages action (2017).
      • Nokia v Apple: 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.
      • Unwired Planet v Huawei, Samsung and others: acting for Samsung in the Unwired Planet litigation regarding standard essential patents in the High Court and Court of Appeal (see e.g., [2016] EWCA Civ 489 and [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.
    • 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).

      Cases

      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.
    • Public and EU law

      James acts regularly for the Government as a member of the Attorney General’s C Panel of Counsel.

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

      Cases

      Cases include:

      • Case C-17/17 Hampshire ECLI:EU:C:2018:674: successful preliminary reference to the Court of Justice on the UK’s obligations to protect employee’s pension rights.
      • 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.
      • 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 KC) 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.
    • Legal education
    • Additional information

      Qualifications: New York Attorney (2001); Irish barrister (2020).

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

    • What the directories say

      Competition Law: James is very smart and a pleasure to work with.” “He is able to work seamlessly as part of a larger team with clients, solicitors and other stakeholders to produce fantastic results.” “James is incredibly hard-working and a pleasure to work with.” “He is able to transform arguments from bad and mediocre to outstanding, and he’s very good at anticipating and preparing the response.” – Chambers UK, 2024

      Leading junior in Competition: “James is very intelligent and experienced beyond his year of call; perceptive at identifying issues before they come up. ” – Legal 500, 2024

      Competition Law: “James is a super smart senior junior who is responsive, hard-working and a great pleasure to work with.” – Chambers UK and Chambers Global, 2023

      Leading junior in Competition: “Hugely knowledgeable about competition law and provides great advice. He has a level of wisdom far beyond his year of call. ” – Legal 500, 2023

      Competition Law: “I found him to be user-friendly and extremely good at getting into technical points and understanding them – he was able to tease out the main issues.” Chambers UK and Chambers Global, 2022

      Leading junior in Competition – Legal 500, 2022

      Competition Law: “James is fantastically responsive and super hard-working.” “You’re getting serious bang for your buck with James.” – Chambers UK and Chambers Global, 2021

      Leading junior in Competition: ‘‘James is very knowledgeable as a result of his long years of experience in the European Commission legal service. He is rapidly gaining in stature in UK competition litigation circles, and has developed a precise style of pleading. James is very pleasant to work with.’’Legal 500, 2021

      Competition Law: “His skill really outweighs his year of call; he is clever, thorough and knows EU competition law inside out.” “Incredibly hard-working, creative and thoughtful.” – Chambers UK and Chambers Global, 2020

      Leading junior in Competition: ‘‘He has experience and knowledge beyond his year of call.’’Legal 500, 2020

      Competition Law: “Bourke knows how the EGJ works, which is a very valuable skill, and he gets on well with the client.”Chambers UK and Chambers Global, 2019

      Leading junior in Competition: ‘‘A competition junior to watch – very bright and thorough. A class act.’’Legal 500, 2018

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

    • Publications

      James co-authored the Enforcement and Procedure chapter in the 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.

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