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. Such acts/omissions include any obligation arising from EU law and cover the Treaties, other EU legal instruments such as directives and general principles of EU law.
The primary purpose of Article 226 is to persuade Member States to be compliant. Note in the wording of Article 226 that although the Commission has to deliver a reasoned opinion it would appear that it is optional whether or not it brings the matter before the Court6. To this end Article 226 provides Member States with ample opportunity to seek a non-contentious settlement of any dispute between itself and the Commission. 30% of all disputes are settled under the administrative procedure at the preliminary informal stage7. The main criticism of Article 226 is that it is a lengthy process with the ultimate outcome being nothing more than a declaration of non-compliance by the ECJ.
Given the latitude Member States have prior to the Commission commencing action under the second paragraph of Article 226, it is no wonder that the Commission is particularly sensitive to non-compliance with an Article 226 ECJ decision in its role of 'guardian of the treaties', stating: 'Non-compliance with a judgement of the ECJ thus strikes at the heart of the legal order of the Community'8. It is only after the Commission has continuously monitored the situation, issued a formal notice, received the Member State's observations and sent it a formal notice and another reasoned opinion - and there is