62Thus, in order to prove that the measure in question applies selectively to certain undertakings or to the production of certain goods, it is for the Commission to prove that it creates differences between undertakings which, with regard to the objective of the measure in question, are in a comparable factual and legal situation. However, it must be added that the concept of aid does not encompass measures creating different treatment of undertakings in relation to charges where that difference is attributable to the nature and general scheme of the system of charges in question (Case C-159/01 Netherlands v Commission [2004] ECR I-4461, paragraph 42 and case-law cited). It is for the Member State which has introduced such a differentiation between undertakings in relation to charges to show that it is actually justified by the nature and general scheme of the system in question (Netherlands v Commission, paragraph 43).
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