Due Process and Fair Trial in EU Competition Law

Front matter

Convention uman Rights

> 4 *

Cristina Teleki

PART 1 Foundations

1 Central Issues of Research 29 11 EU Competition Law — A Paradox within EU Law 29 1.2 The ECtHR - System Design as a Predictor of Success 39 13 ECtHR asa Self-Regulating Tribunal 42

2 Supporting Issues 48 21 Systems Theory and Social Sciences 48 2.2 The New Public Management Movement 49 2.3 Peoples, Consumers and Citizens 54 2.4 Accession of the EU to the ECHR 57 2.5 The Charter of Fundamental Rights of the EU 63

3 A Foot in the Past: Existing Literature 68 31 Legal Philosophy 69 3.2. A Renewed Debate on Human Rights 71 3.3 A Renewed Imagining of the Trial 74 3.4 Competition Policy 75 3.5 Competition Policy and Fundamental Rights 78

PART 2 The Dynamic Evolution of the Right to a Fair Trial Introduction to Part2 83

4 TheRighttoaFairTrial 92 41 Formulation and Importance of Article 6(1) ECHR 92

VI

CONTENTS

4.2 Influence of the Case-law of the ECtHR on Domestic Legislation 94 4.3 External Influences on the Case-law of the ECtHR 97

5.1 Maintaining Pockets of State Sovereignty 102

5.2 Applicability of Article 6(1) ECHR to “Civil Rights and Obligations” 103

5.3 Applicability of Article 6(1) ECHR to “Criminal Charges” 8

The Right to a Fair Trial — A Tool for Self-Regulation 129

6.1 The Process Towards Justiciability 129

6.2 The Role Played by the Academic Community 131

6.3 The Zeitgeist 132

6.4 Cooperation with the ECtHR — Four Possible Models 132

Part 3

Fair Trial and the Independence of the Commission as the Competition Enforcement Agency of the EU

Introduction to Part3 141

The Debate on Independence at the Crossroads of the Administrative

State, Delegation and IRAS 143

71 The Rise of the Administrative State, Delegation and IRAs 145

7-2 TheUNCTAD 150

7-3 OECD Roundtable on Changes in Institutional Design of Competition Authorities 151

7.4 International Competition Network 152

7.5 Independence of European Regulators 154

7.6 The European Competition Network 156

77 Empowering NCAs — Directive 1/2019 159

7.8 The Difficult Case for the Independence of the European Commission 160

The Case-law of the ECtHR on the Right to an Independent and Impartial Tribunal 164 8.1 Established by Law 164

CONTENTS

8.2 Independence 166

8.3 Impartiality 180

8.4 The Relevance of the ECtHR’s Case-Law on Independence and Impartiality 184

The Structure of the European Commission as Enforcer of

Competition Law 189

9.1 The European Commission as a Political Institution 190

9.2 The European Commission as an Autonomous Bureaucracy 196

The Procedure for Enforcement of Article 101 and 102 TFEU 210 10.1 The Investigation Phase 21

10.2 Prohibition Procedure 219

10.3 Commitments Procedure 230

10.4 Procedure for Rejection of Complaints 232

10.5 Settlement Procedures 233

The Commission's Powers of Investigation 238 111 Sanctions 238

1.2 Leniency 240

11.3 Sector Inquiries 243

1.4 Requests for Information 245

1.5 The Power to Take Statements 245

1.6 Powers of Inspection 246

Limits on the Commission’s Powers of Investigation 248 12.1 General Principles of Limitation 248 12.2 The Rights of the Defence 251

A Risk-Based Framework for Safeguarding the European

Commission’s Independence 260

13.1 Identifying the Risks to Independence in EU Competition Law Proceedings 260

13.2 Mitigating the Identified Risks 267

VIII CONTENTS

Introduction to Part 4 277

14 Case-law of the ECtHR on the Right to an Effective Judicial Review 279 14.1 Judicial Review in Administrative Law Disputes 280 14.2 Judicial Review in Disputes Involving “Criminal Charges” 287 14.3 Judicial Review in Banking Law Disputes 289 14.4 Non-Pecuniary Damage for Breach of the Right to Judicial Review 291

15 Relevance of the ECtHR’s Case-law on the Right to Judicial Review — A Story of Three Models 293 15.1 Exercise of Administrative Discretion within Polycentric Issues 294 15.2 Exercise of Administrative Discretion for Monocentric Issues 296 15.3 Exercise of Administrative Discretion as Policing Power 297

16 Case-law of EU Courts on the Right to an Effective Judicial

Review 299

16.1 Right to Effective Judicial Protection 301

16.2 Right to Judicial Review in Competition Law Cases — A Matter of Constitutional Design 304

16.3 Limited Review of Legality — Design by Self-Interpretation 305

16.4 Unlimited Review of Fines 308

16.5 Margin of Appreciation of the EU Commission and Unlimited Review of Fines gu

16.6 The Right to a Fair Legal Process in EU Law 316

17 IsJudicial Review a Cure for Bigness? 324 171 Adjudication and Economic Evidence 326 17-2 Adjudication and the Administrative Man 332 17-3 Adjudication, Bias and Monoculture 335 17-4 Adjudication and Problems of Organized Complexity 338

Step into the Future: Bigness and Judicial Power 341 Works Cited 351 Index 379

Acknowledgements

I am greatly indebted to Professor Thomas Cottier for having supervised my LL.M. thesis at Europa Institute at a time when citizens of my country of origin could not accede to education in Europe easily. This first contact with research has changed the course of my life and led me on a path I have not envisaged before. I am very grateful for all the support I have received from Professor Cottier over the years and for the spirit of intellectual observation he has awaken in me while supervising my doctoral studies. I am also grateful to my husband, Tibor, for all his support.

Figures and Tables

Figures

The applicability of the ECHR and of the Charter to EU competition law 17 The influence of the Council of Europe human rights enforcement system on the EU competition law enforcement system 18

The syllogism applied by the ECtHR to test the compatibility of adjudication exercised by administrative agencies with the right to a fair trial 20

The current two-layered enforcement system of EU competition law 32 Decision-making process for the enforcement of EU competition law. 32 The presumptive three-layered enforcement system of EU competition law following the accession of the EU tothe EctHR 38

The five elements of the human rights system enforced by the ECtHR 40 The influence of the case-law of the ECtHR on the independence on EU Commission 141

Relationship between seriousness of consequences of a given procedure and existing safeguards or judicial review 187

The influence of article 6(1) ECHR on the judicial review of EU

competition law 277

Review of legality as construed by art. 263 TFEU 305

Design of the “Fair Legal Process” in the case-law of the EU courts 318 Letters received by the EU Commission in relation to the Charter divided by subject 320

Overview of CJEU case-law which quotes the Charter or mentions it in its reasoning 321

Most quoted Charter provisions in the case-law of the CJEU in 2017 321

Tables

Possible models of cooperation with the ECtHR 134

Risks to independent adjudication and existing safeguards in EU competition law 262

Types of risks to independence in EU competitionlaw 268 Total of fines imposed by the Commission in EU competition law cases — 1990-2020 310

FIGURES AND TABLES

5 Total of fines imposed by the Commission in EU competition law cases — 2016-2020 3U

6 Total of fines imposed by the Commission, adjusted for court judgements — 1990-2020 312

7 Percentage of fine reduction by EU courts in cartel cases 313

XI

Introduction

Legal principles of due process and fair trial play a central role in the process of fostering the rule of law, human rights and democracy in the procedures implementing competition law in the European Union (EU), in particular, in relation to corporate bigness. The European Commission enforces EU competition law, cumulating investigative, prosecutorial and adjudicative functions. At the same time, the judicial branch of the EU practices a deferential judicial standard of review in competition law cases which appears to favour the executive branch of the European Union in relation to powerful economic operators and persons affected in alleged violations of competition law.

This setup can lead to the erosion of democratic principles of governance in the EU, in particular, the separation of powers, accountability and the respect of individual fundamental rights. Such concerns are not new. Schwarze prophesized in his classical work European Administrative Law, that “what appears to be an absolute subjection of the administration to the rule of law cannot be achieved”.! Everson has voiced that “the dark hour of the executive poses a fundamental challenge to both the rule and role of modern law” in two particular and interrelated ways.? The emphasis on the technical models of implementation and oversight of and by the government lead to the “scientification of large areas of human activity”, which raises concerns about the role of law as corrective action within the public sphere.? More recently Chiti, while presenting EU administrative law as a “genuinely complex gravitational field in which internal and external forces co-exist one next to the other’, highlighted that in its 60-year long history, EU administrative law remained underdeveloped in two major ways.* EU administrative law has failed first, to recognize the relevance and role of administrative discretion, “which remains a taboo in EU institutional discourse” and, second, to develop fully-fledged accountability regimes.®

Schwarze, Jürgen. European Administrative Law. London: Sweet and Maxwell, 2006, p. 209.

2 Everson, Michelle. “Agencies: the “Dark Hour” of the Executive?” Legal Challenges in EU Administrative Law: Towards an Integrated Administration. Eds. Herwig C.H. Hofmann and Alexander H. Türk. Cheltenham: Edward Elgar, 2009, pp. 116-135, p. 125.

3 Everson, op. cit.

4 Chiti, Edoardo. “Is EU Administrative Law Failing in Some of Its Crucial Tasks?” European Law Journal 22.5 (2016): pp. 576-596, p. 581.

5 Chiti, op. cit., p. 588.

This is an open access chapter distributed under the terms of the cc BY-NC 4.0 license.

I question in this book whether the administrative practice of the European Commission in EU competition law contributes to the democratic deficit of governance in the European Union. This question becomes of particular importance in light of what Schmidt-Af mann and Rademacher described as a worldwide trend “towards recognizing the individual right of effective review by an independent body as an important characteristic of the international legal order”.® Schmidt-Af{mann and Rademacher describe the emergence in international law of “an overarching guarantee of protection of individual rights against acts of public power”.” In her recent book Beyond Human Rights: The Legal Status of the Individual in International Law, Peters takes this argument a step forward by proposing that the individual's position should be strengthened under international law.§ An individual who has access to international justice can bring claims and contributes — directly or, at least, indirectly — to the creation of international law.

In this context, the case-law of the European Court of Human Rights (ECtHR) on the right to a fair trial provides safeguards which, if incorporated into the substance of EU law, could strengthen the democratic capital of the EU. The right to a fair trial — also referred to as Article 6(1) ECHR or due process — is defined in the European Convention on Human Rights (ECHR) as follows:

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

This provision has generated a substantial number of cases that has affected the ECtHR to develop into a self-regulating tribunal. The principles developed in the case-law of the ECtHR concerning the independence of administrative agencies and the right to effective judicial protection are of particular importance in this context because they deal with both shortcomings identified by Chiti in EU administrative law, that is administrative discretion and accountability regimes.

6 Schmidt-Afmann, Eberhard and Timo Rademacher. “Rechtsschutzgarantien des internationalen Rechts.” Jahrbuch des öffentlichen Rechts der Gegenwart 61 (2013): pp. 61-88, p. 62. (personal translation).

7 Schmidt-A&mann and Rademacher, op. cit., p. 88. (personal translation).

8 Peters, Anne. Beyond Human Rights: The Legal Status of the Individual in International Law. Cambridge: Cambridge University Press, 2016.

This monograph has the strong ambition of keeping a strong foothold in past scholarship in order to elucidate the question of addressing corporate bigness in modern democracies. Therefore, the work borrows and recycles notions that might be familiar to lawyers, political scientists and economists, such as self-regulation, administrative state, the economic man, problems of organized complexity, system thinking etc.

The second foothold attempts to stride forward a few ideas. The first idea is that the ECtHR remains relevant to the debate on bigness, especially due to its self-regulating nature. The second idea is that, the ECtHR and the EU are part of a pan-European system of fundamental rights protection. The EU and the ECtHR must find a way to work together, despite the current blockage of the accession of the EU to the ECHR by the Court of Justice of the European Union (cJEU). The third idea is that the critique concerning the independence of EU Commission as competition enforcement agency and of the ensuing deferential judicial review is essentially a critique of the design of EU law.

The current book might be of interest to scholars concerned about fundamental rights in the EU and specifically to scholars interested in due process. The discussion in Part 3 about the independence of competition agencies might be of interest for the transposition of Directive 1/2019 meant to strengthen the independence of National Competition Authorities (NCAs). In addition, in light of the fact that the accession of the EU to the ECHR has not been finalized yet, this book sheds a light on a few potential consequences of the accession. Also, some elements of the current analysis — independence of the European Commission and deferential review — could be applied in relation to the common agricultural law, EU pharmaceutical law or EU criminal law.

The current work is placed within a larger intellectual context which includes the evolution of the bureaucratic executive power, the curse of bigness and the changing constitutional design of the EU.

The Curse of Bigness — In a recent book, The Curse of Bigness: Antitrust in the New Gilded Age, Wu notes that “we have managed to recreate both the economics and politics of a century ago — the first Gilded Age — and remain in grave danger of repeating more of the signature errors of the twentieth century”. He highlights that — as witnessed in the past — extreme economic concentration yields inequality and suffering, which in turn feed nationalistic and extremist tastes. The tendency towards bigness is not new in the history of mankind, as the history of former empires suggests. The history of industrialization,

9 Wu, Tim. The Curse of Bigness: Antitrust in the New Gilded Age. New York: Columbia Global Reports, 2018, p. 10.

however, brought about a form of bigness not known before: the big organization. Public or private, the big organization posed new questions both about its operation from within and about controlling it from the outside. These questions strike at the core of the democratic debate which is necessarily concerned about the governmental power to be exercised in relation to the big organization.

The concerns voiced by Wu result from observing the monopolization movement that started in the late nineteenth century and led to a new economic form: the giant, monopoly corporation. This was accompanied by the Social Darwinism movement that went so far as to propose to diminish by slaughter the sick in order to speed the renewal of population. Early monopolists used Social Darwinism to justify the survival of only the strongest and fittest on the market. In this sense, Wu quotes Rockefeller having said that “growth of a large business is merely a survival of the fittest (...) the working out of a law of nature, and a law of God”.!°

Nowadays, the rule of concentrated economic power affects industries like finance, media, airlines, telecommunications and, more importantly, the digital technology industry, where giants such as Google, Apple, Facebook and Amazon, play an important role in people’s lives." This debate is particularly astute in the context of the growing concerns about artificial intelligence and general artificial intelligence because there is a race in this field which is largely a race between companies. If the race is successful, the company that will control general artificial intelligence might also control the future of humanity.!?

One - especially if one is a scholar — must however not fall prey to the biased tendency of connecting corporate bigness with evil. As Justice McKenna reminded in US Steel “we must adhere to the law and the law does not make mere size an offence, or the existence of unexerted power an offence”.! It is in this context that Wu asks a fundamental question which is relevant to this book: “Are extreme levels of industrial concentration actually compatible with the premise of rough equality among citizens, industrial freedom, or democracy itself?”* To answer his own question, Wu proposes to resurrect and renovate the main tenets of the Brandeisian economic vision

12 Chace, Calum. Surviving AI: The Promise and Peril of Artificial Intelligence. London: Three Cs, 2015.

13 United States v. United States Steel Corp., 251 U.S. 417 (1920).

which “took matters like bigness and concentration as inseparable from the very nature of democracy, and the conditions under which its citizens would live”.15

Louis D. Brandeis — an American lawyer who is regarded as one of the most important antitrust theoreticians to have ever sat on the US Supreme Court — helped Woodrow Wilson conceive his 1912 New Freedom electoral campaign by forging a link between the control of bigness - monopolies — and democratic principles. This vision remained popular in the US for the rest of the 20th century and is currently enjoying a revival.!® The neo-Brandeisians are primarily concerned with more aggressive antitrust laws, merger control and trustbusting. At the same time, “the curse of bigness” that Brandeis coined referred not only at concentration of economic power. In fact, Brandeis believed that concentration of political or administrative power was akin to alienating the state from democracy and from the citizen. Bigness, as Brandeis suggested, was a curse wherever it occurred.!”

These are thus some of the most interesting challenges of modern democracies: — Understanding corporate bigness and its impact on the society;

Deciding how to address corporate bigness in a democratic society; — Addressing corporate bigness while respecting fundamental rights;

The role that the law should play in the process of addressing bigness. This book deals with the third and fourth challenge — the attempt to address bigness by the EU Commission and the CJEU.

In the EU, the European Commission is mandated by Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU) to discipline and to sanction bigness — cartels and abuses of dominant position. In addition, the EU Commission is mandated by the Council Regulation No 139/2004 (EU Merger Regulation) to implement merger control by prohibiting mergers and acquisitions which would significantly reduce competition in the Single Market.!8

At the same time, when enforcing EU competition law, the European Commission represents the kind of bigness Brandeis warned against, by exercising a wide discretion and policing powers that, at times, can appear limitless.

16 Ramsey, David. Antitrust and the Supreme Court. El Paso: LFP Scholarly Publishing LLC, 2012, p. 40.

17 Rosen, Jeffrey. Louis D. Brandeis: American Prophet. New Haven: Yale University Press, 2016.

18 Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (Ec Merger Regulation), oJ L 24, 29.1.2004, pp. 1-22.

Administrative discretion could be limited in at least three ways: by the Treaties establishing administrative discretionary regimes, by the courts or by procedural participatory rights. In the EU, the exercise of administrative discretion in competition law proceedings is not contained by the EU Treaties. Second, both the General Court of the EU (former Court of First Instance, CFI) — which acts as a first instance court in EU competition law cases — and the cyEU — which acts as an appellate and last instance court in EU competition cases — perform a deferential judicial review. Most scholars agree that the deferential judicial review performed by the EU Courts does not limit the EU Commission’s administrative discretion. Lastly, the regime of procedural participatory rights in EU competition law — whose main engine is the principle of due process — is far from having a real impact on the EU Commission’s administrative discretion.

In the same vein, the role played by fundamental rights, including principles of due process, in EU law is growing. Thus, on the one hand, EU Commission fights bigness with a clear focus on powers of investigation and minimal due process during EU competition enforcement proceedings. On the other hand, the recent legislation adopted by EU concerning the direct enforcement of Articles 101 and 102 TFEU by NCAs appears to prioritize fundamental rights. As a recent piece of EU legislation described in Section 7.6. below shows, the member states of the EU must ensure that NCA s can operate in full independence and impartiality when enforcing EU competition law.!9 The same rules however do not apply to the EU Commission itself.

From Growing Power of the Bureaucratic Executive to Doubting Chevron — The industrial revolution seems to have been at the origin of corporate bigness. The same phenomenon of growth took place however in government, with an increasing power for the executive branch, a growing number of executive agencies and attacks against the judiciary when attempting to place limits on the executive. Bureaucratic theory, highlighted in Section 9.2.1. below, is one of the ideas developed to explain and support this phenomenon. Lawyers, however, have been rather divided both about the virtues of bureaucracy and its compatibility with democracy.

At the beginning of the last century the growing power of bureaucracy was associated with despotism and a voluntarily misleading view of the world. James M. Beck, former Solicitor General of the United States, wrote in his

19 Directive (EU) 2019/1 of the European Parliament and of the Council of 11 December 2018 to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market, oj L 1n, 14.1.2019,

1932 book Our Wonderland of Bureaucracy, that bureaucracy “primarily refers

in a democratic government to the aggrandizement of the Executive at the

expense of the Legislative branch of the government’.”° In a broader sense,

Beck argued, bureaucracy “refers to the irrepressible war between the individ-

ual and the State, and involves the question as to the just limits, under the

higher law, of the State over the property and life of the individual”.”!

On the other side of the Atlantic, Lord Hewart of Bury, Lord Chief Justice of England, argued in his 1929 book The New Despotism that there was “in existence a persistent and well-contrived system, intended to produce, and in practice producing, a despotic power which at one and the same time places Government departments above the Sovereignty of Parliament and beyond the jurisdiction of the Courts”.2? Hewart announced that “the time has come for the departmental despot, who shall be at once scientific and benevolent, but above the all a law to himself”.2? Hewart imagines that if the new departmental despot had a soliloquy, it would comprise the following rules which, in the context of the present book, deserve full mention:

1. The business of the Executive is to govern.

2. The only persons fit to govern are experts.

3. The experts in the art of government are the permanent officials (...).

4. But the expert must deal with things as they are. The “foursquare man” makes the best of the circumstances in which he finds himself.

5. Two main obstacles hamper the beneficent work of the expert. One is the Sovereignty of Parliament, and the other is the Rule of Law.

6. A kind of fetish-worship, prevalent among an ignorant public, prevents the destruction of these obstacles. The expert, therefore, must make use of the first in order to frustrate the second.

7. To this end let him, under Parliamentary forms, clothe himself with despotic power, and then, because the forms are Parliamentary, defy the Law Courts.

8. This course will prove tolerably simple if he can: (a) get legislation passed in skeleton form; (b) fill up the gaps with his own rules, orders, and regulations; (c) make it difficult or impossible for Parliament to check the said rules, orders, and regulations; (d) secure for them the force of statute; (e) make his own decision final; (f) arrange that the fact of his decision shall

20 Beck, James M. Our Wonderland of Bureaucracy. New York: The Macmillan Company, 1932, p. x.

21 Beck, op.cit., p. x.

22 Hewart, Lord of Bury. The New Despotism. London: Ernest Benn Limited, 1929, p. 14.

23 Hewart, op. cit., p. 14.

be conclusive proof of its legality; (g) take power to modify the provisions

of statutes; and (h) prevent and avoid any sort of appeal to a Court of Law. g. Ifthe expert can get rid of the Lord Chancellor, reduce the judges to a

branch of the Civil Service, compel them to give opinions beforehand on

hypothetical cases, and appoint them himself through a business man to

be called “Minister of Justice’, the coping-stone will be laid and the music

will be the fuller.?4 Von Mises contended that the voluntary abandonment of congressional rights through delegation as the main source of modern bureaucracy-making rendered bureaucracy undemocratic.25 He warned that “delegation of power is the main instrument of modern dictatorship. It is by virtue of delegation of power that Hitler and his Cabinet rule Germany. It is by delegation of power that the British Left wants to establish its dictatorship and to transform Great Britain into a socialist commonwealth”.*° The process of “transfer of effective power over human lives from the constitutionally visible offices of government, the nominally sovereign offices, to the vast network that has been brought into being in the name of protection of the people from their exploiters” has not stopped.?” Anthropologist David Graeber called this phenomenon total or predatory bureaucratization which was not just a political realignment, it was a cultural transformation in that bureaucratic techniques developed in financial and scientific circles such as performance reviews, focus groups, surveys “came to invade the rest of society — education, science, government — and eventually, to pervade almost every aspect of everyday life’.?8

Other social scientists focused on less grim accounts of the bureaucracy.

Bureaucracy appeared to Max Weber as a superior and inevitable form of social organization that wove rationality and formalism into the social fabric guaranteeing thus its strength:

The decisive reason for the advance of bureaucratic organization has always been its purely technical superiority over any other form of organization. The fully developed bureaucratic mechanism compares with

24 Hewart, op. cit., pp. 20-21.

25 Von Mises, Ludwig. Bureaucracy. New Haven: Yale University Press, 1944, p. 5.

26 Von Mises, op. cit., pp. 5-6.

27 Nisbet, Robert A. The New Despotism. California: Institute for Humane Studies, Inc., 1976, p. 4.

28 Graeber, David. The Utopia of Rules: On Technology, Stupidity, and the Secret Joys of Bureaucracy. London: Melville House, 2016, p. 21.

other organizations exactly as does the machine with the non-mechanical modes of production. Precision, speed, unambiguity, knowledge of the files, continuity, discretion, unity, strict subordination, reduction of friction and of material and personal costs — these are raised to the optimum point in the strictly bureaucratic administration (...). As compared with all collegiate, honorific, and avocational forms of administration, trained bureaucracy is superior on all these points.?9

In the same vein, public choice theorists have been concerned with “the use of economic tools to deal with traditional problems of political science”.2° Buchanan, one of the founding fathers of the Public Choice Theory and a Nobel Prize winner, posited that (1) the individual persons were the basic component units of the social order and that (2) the government was “that complex of institutions through which individuals make collective decisions, and through which they carry out collective as opposed to private activities”?! The government and its extension, the bureaucracy, appear thus as a benevolent institution, motivated by the desire to promote the public good. Two immediate conclusions have been deducted from these initial hypotheses. The first is that substantive or procedural limits on the government imply limiting its ability to provide for general welfare and, therefore, to answer the individual persons’ desires. The second conclusion is that one of the main functions of the government was to limit failures of markets.32

The paradigm pendulum appears thus to be moving between opposite visions when it comes to the issue of the growing power of the executive branch. The public and academic debate accompanying the New Deal captured these intellectual tumults. In his book The New Deal and the Problem of Monopoly: A Study in Economic Ambivalence, historian Ellis W. Hawley, presents an extensive account of this dilemma:

29 Weber, Max. “Technical Advantages of Bureaucratic Organisation.’ From Max Weber: Essays in Sociology. Eds. Hans Gerth and C. Wright Mills. New York: Oxford University Press, Digital Print, 2007, pp. 358-359.

30 Tullock, G. “Public Choice.” The New Palgrave Dictionary of Economics. Eds. Durlauf S.N., Blume L.E. London: Palgrave Macmillan, London, 2008.

31 Buchanan, James. “An Economist’s Approach to Scientific Politics.” The Collected Works of James M. Buchanan: Volume 13: Politics as Public Choice. Carmel: Liberty Fund, 2000, p. 4.

32 Clarck, J.R. and Lee R. Dwight. “The Impact of the Calculus of Consent.” Public Choice, Past and Present: The Legacy of James M. Buchanan and Gordon Tullock. Ed. Lee R. Dwight. New York: Spinger, 2013, p. 2.

The search in the twentieth-century America (...) was for some solution that would reconcile the practical necessity with the individualistic ideal, some arrangement that would preserve the industrial order, necessarily based upon a high degree of collective organization, and yet would preserve America’s democratic heritage at the same time. Americans wanted a stable, efficient industrial system, one that turned out a large quantity of material goods, insured full employment, and provided a relatively high degree of economic security. Yet at the same time they wanted a system as free as possible from centralized direction, one in which economic power was dispersed and economic opportunity was really open, one that preserved the dignity of the individual and adjusted itself automatically to market forces. And they were unwilling to renounce the hope of achieving both.