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 The Commission will normally give the Member State a period of grace to comply with its reasoned opinion before the action is brought before the Court. 
 * Case 74/82 Commission v Ireland [1984] ECR 317.
 
 The Reasoned Opinion must comply with the principle of collegiality which applies to the  Commission – Article 219 EC (ex 163), paragraph 2.
 •  Case C-191/95 Commission v Germany [1998] ECR I-5449 and Cases C-272/97 C v Germany [1999] ECR I-2175 and C-198/97 Commission v Germany [1999] ECR I-3257
 •  Case C-1/00 C v France [2001] ECR I-9989 – time to respond to RO
 
 The Reference to the European Court
 The Commission cannot raise new grounds or submissions not stated in the reasoned opinion, see Case C-274/93 Commission v Luxembourg [1996] ECR I-2019, 2040.   Specific and detailed existence of how a State has failed to fulfil its obligations is required, see Case C-431/92  Commission v Germany [1995] ECR I-2189, 2226.
 
 One of the questions which arises in relation to the procedure is; does the Commission have a discretion to act under Article 226?
 
 The Commission's Discretion?
 The Commission has a discretion whether or not to initiate proceedings against a Member State under Article 226 and this discretion operates at each stage of the process. 
 * Case 247/87 Star Fruit Company v Commission [1989] ECR 291. (See also previously Case
      7/68 Commission v Italy [1968] ECR 423).
 In Article 226 proceedings the burden of proof is on the Commission 
 * Case 290/87 Commission v Netherlands [1989] ECR 3083, 3104.
 
 There is an interesting discussion in the textbooks about the whole exercise by the Commission of its functions under Article 226 and its willingness to act on behalf of/with the EU citizen in this area. The position of the EU Ombudsman, which you will have learnt about when looking at the EP, is also important to recall here. See European Ombudsman Annual Report 1996 and 1997 re an enquiry into the ‘Newbury Bypass’ case (discussed in Chalmers et al (2006) at pp 355- 357). Finally, there are connections to be made between access to documents law (Tutorial 1) and Article 226 – can you see how?
 
 Next, we consider
 What types of breaches of EU law may form the basis of a 258 action?
 
 (a) Failure to comply with a Community measure; inadequate implementation of Community Law
 *  Case 167/73 Commission v France [1974] ECR 359.
 *  Case 363/85 Commission v Italy [1987] ECR 1733, 1742.
 *  Case 104/81 Kupferberg [1982] ECR 3641, 3662.
 *  Case 241/85 Commission v Greece [1988] ECR 1037.
 *      Case C-300/95 Commission v UK [1997] ECR I-2649; [1997] 3 CMLR 923, 940-41,
 
 (b) Failure to give proper effect to Community Law
• Case C-265/95 Commission v France [1997] ECR I-
*   Case  C-68/88 Commission v Greece  [1989] ECR 2979

 (c) Breach of the obligation of co-operation under Article 10 (previously Article 5) EC
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