State aid, sustainable management of natural sites and services of general economic interest

Part of the Green Deal policy of the EU is the restoration of nature. This policy is not new as Directive 92/43 on the conservation of natural habitats and of wild flora and fauna has already resulted in the designation of special areas of nature conservation. Recently, the draft regulation on nature restoration was adopted after a heated debate in both the European Parliament and the Council. It is clear from the outset that the need to protect natural sites is high on the agenda of the EU. The Member States are responsible for implementing the EU rules on the management of natural sites. It goes without saying that this implementation will trigger huge investments by these States. This raises issues of EU State aid law: if entities engaged in economic activities receive funding with a view to the management of natural sites, it has to be examined whether this is in line with Articles 107-109 TFEU. In this paper it will be explored whether the concept of Services of General Economic Interest (SGEI) is capable of accommodating nature management concerns in the application of the EU State aid rules. This concept has been used for striking a balance between the necessity to ensure undistorted competition in the EU internal market and various public interest policies. It will be argued that on the basis of arguments derived from ecological solidarity and ecological heritage, the management of natural sites may be designated as a SGEI mission. However, in this regard, it is of great interest to acknowledge that this management consists of three categories of activities: 1) the acquisition of natural sites (in order to make the management of natural sites possible), 2) nature conservation (aimed at the preservation and protection of natural sites), and 3) exploitation of natural sites (such as the selling of wood and touristic activities). The current approach developed in the decisional practice of the Commission and the case law of the Union Courts do not pay due consideration to the special characteristics of these activities and, as a result, it suffers from conceptual problems. This prevents EU Member States from financing projects geared towards the sustainable exploitation of natural sites. In this contribution, an alternative approach will be developed in order to do justice to the wide variety of nature management activities. Such an approach could contribute to the attainment of the Green Deal goals.