James Bourke

Call: 2014 | 2004 (Irish solicitor) 2001 (New York Attorney)

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Introduction

James is a competition law specialist with strong experience in EU law. He is recommended as a leading junior for Competition Law by Chambers and Partners and Legal 500:

He is incredibly hard-working, creative and thoughtful.” (Chambers UK, 2020)

His skill really outweighs his year of call; he is clever, thorough and knows EU competition law inside out.” (Chambers UK, 2020)

‘‘He has experience and knowledge beyond his year of call’’ and he is ‘‘A competition junior to watch – very bright and thorough. A class act.’’ (Legal 500)

James is an experienced practitioner, originally qualifying as a New York attorney in 2000. A former référendaire at the General Court of the EU, he 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 Apple in its ongoing appeal against the European Commission’s State aid decision alleging that Ireland granted €13 billion of aid to Apple.
  • Acting for Broadcom on its challenge to the European Commission’s decision of October 2019 imposing interim measures for the first time in 20 years.
  • Appearing for the European Commission in its intervention before the Court of Appeal in the Flynn / Pfizer case (November 2019).
  • Acting for DAF in the Trucks competition damages litigation.
  • News
  • Competition litigation (including state aid)

    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, 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.

    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:

    Cases

    Current and recent cases include:

    • Flynn / Pfizer v CMA: appearing for the European Commission in its amicus intervention before the Court of Appeal (November 2019; unled).
    • Case T-892/16 Apple v Commission (ongoing) – representing Apple in its annulment action against the Commission’s decision that Ireland granted €13 billion of State aid in the form of tax opinions reducing Apple’s’ Irish taxable base. 
    • IPCom v Vodafone: acting for IPCom in its claim that Vodafone has failed to take a FRAND licence to IPCom’s standard essential patents.
    • Google v Commission (Android): acting for Google in the Commission’s Android investigation and assisting Cleary Gottlieb in the preparation of the appeal before the General Court.
    • 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.
    • 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.
    • 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.
    • 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

    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

    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 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.

     

  • Legal education
  • Additional information

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

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

  • What the directories say

    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

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

  • Publications

    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.

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