Indeed in Francovich & Boniface v Italy 3 the ECJ stated that 'Community law lays down a principle according to which a Member State is liable to make good damage to individuals caused by a breach of Community law for which it is responsible'.
The Commission is empowered to bring enforcement actions under Article 226. Article 228 provides the remedy for an Article 226 action. Steiner and Woods et al4 argue that the ability to bring Member States to book for non-compliance is 'vital for the success of the Community' as it ensures both effective implementation of European Community law and 'illustrates certain supranational elements in the Community structure.'
In order to ensure the proper functioning and development of the common market, the Commission shall: -- ensure that the provisions of this Treaty and the measures taken by the institutions pursuant thereto are applied.
If the Commission considers that a Member State has failed to fulfil an obligation under this Treaty, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations.
A 'failure' can be an act or an omission to act to prevent an infringement by any agency of the State, even if that agency is constitutionally independent: Case 77/69 Commission v Belgium 5. ...