ABSTRACT
The European Commission1 is the dominant actor within Article 226. It occupies a unique position in relation to ensuring the compliance of Member States with their obligations under the Treaty, by acting as investigator, primary judge of the Member States’ conduct and ultimate arbiter of what conduct will constitute compliance with the Treaty.2 The Commission’s stated view of the enforcement mechanism is that: ‘The main aim of an infringement action is to oblige the offending Member State to remedy its breach of Community law.’3 This characterisation of Article 226 suggests that the Commission views Article 226, in the main, as a compliance mechanism, and as such the Commission’s role under Article 226 is largely that of the enforcer of compliance. This is a rather simplistic explanation of the Commission’s position. If the main aim of the infringement action is to oblige the Member State to remedy its breach of Community law, this implies that there might be other aims or roles that the enforcement action might perform; nonetheless the Commission continues to discuss Article 226 in terms of a singular enforcement function. It must necessarily be true that, first and foremost, Article 226 remains an executive policy choice – the Commission chooses its strategy on enforcement and is in complete control of the design, management and operation of Article 226. Only then can the Commission carry out its role of enforcer (or in the Commission’s terms, guardian of the Treaties).4
