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Judgment of the Court (Second Chamber) of 7 April 1965. - Richard Müller v Council of the EEC and Council of the EAEC. - Case 28-64. European Court reports French edition Page 00307 Dutch edition Page 00296 German edition Page 00324 Italian edition Page 00300 English special edition Page 00237 Danish special edition Page 00049 Greek special edition Page 00077 Portuguese special edition Page 00083

Summary Parties Subject of the case Grounds Decision on costs Operative part

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1 . OFFICIALS - APPOINTING AUTHORITY ACTING IN THE NAME OF ITS INSTITUTION - MEASURES AFFECTING THE LEGAL POSITION OF OFFICIALS AND OTHER SERVANTS - ATTRIBUTABLE TO THE INSTITUTION

( STAFF REGULATIONS OF OFFICIALS OF THE EEC AND EAEC, ARTICLE 2 )

2 . OFFICIALS - APPEALS BY OFFICIALS - CITATION OF INSTITUTION FROM WHICH THE ACT ADVERSELY AFFECTING THE PERSON CONCERNED ORIGINATES

( STAFF REGULATIONS OF THE EEC AND EAEC, ARTICLE 91 )

3 . EUROPEAN COMMUNITIES - SEPARATE LEGAL PERSONALITY - COUNCILS OF MINISTERS - INSTITUTIONS LEGALLY SEPARATE

4 . OFFICIALS - CLASSIFICATION - TABLE OF DEFINITIONS OF DUTIES - IMPORTANT NEW FACTS CONCERNING DECISIONS PRIOR TO CLASSIFICATION - REQUEST FOR REVISION OF THOSE DECISIONS ON THE BASIS OF THAT TABLE - PERMISSIBILITY

( STAFF REGULATIONS OF OFFICIALS OF THE EEC AND EAEC, ARTICLES 5 AND 90 )

5 . OFFICIALS - APPEALS - TIME-LIMITS - EXTENSION OF TIME BY MEANS OF A COMPLAINT WITHIN THE MEANING OF ARTICLE 90 OF THE STAFF REGULATIONS OF OFFICIALS

( STAFF REGULATIONS OF OFFICIALS OF THE EEC AND EAEC, ARTICLE 91 )

6 . PROCEDURE - APPEAL MADE AGAINST A DECISION NOT YET ARRIVED AT - VALIDATION OF THIS APPEAL IN CASE OF A SUBSEQUENT MEASURE CONFIRMING THAT ATTITUDE

( STATUTES OF THE COURT EEC AND EAEC, ARTICLE 19 )

( RULES OF PROCEDURE, ARTICLE 38(2 ) ( SIC ))

1 . IT FOLLOWS FROM ARTICLE 2 OF THE STAFF REGULATIONS THAT THE APPOINTING AUTHORITY ACTS IN THE NAME OF THE INSTITUTION WHICH DESIGNATED IT, SO THAT ACTS CONCERNING THE LEGAL POSITION OF OFFICIALS AND WHICH MAY ADVERSELY EFFECT THEM MUST BE ATTRIBUTED TO THE INSTITUTION TO WHICH THEY ARE ATTACHED .

2 . UNLIKE APPEALS THROUGH OFFICIAL CHANNELS WHICH HAVE NO CONTENTIOUS ELEMENT WITHIN THE MEANING OF ARTICLE 90 OF THE STAFF REGULATIONS, APPEALS TO THE COURT PROVIDED FOR IN ARTICLE 91 OF THOSE REGULATIONS MUST BE BROUGHT AGAINST THE INSTITUTION FROM WHICH THE ACT HAVING AN ADVERSE EFFECT EMANATED .

3 . THE MERE FACT OF THE EXISTENCE OF A SINGLE SECRETARIAT CANNOT ESTABLISH THE LEGAL UNITY OF THE COUNCILS OF MINISTERS OF THE EUROPEAN COMMUNITIES, AS EACH OF THESE COMMUNITIES HAS A SEPARATE LEGAL PERSONALITY AND AS THE TREATIES DID NOT ESTABLISH THE COUNCILS AS A COMMON INSTITUTION .

4 . AS THE DEFINITIONS OF THE DUTIES AND POWERS ATTACHING TO EACH POST ARE CAPABLE OF CONSTITUTING AN IMPORTANT NEW FACT IN RESPECT OF PREVIOUS DECISIONS OF CLASSIFICATION, IT IS PERMISSIBLE FOR THE PERSON CONCERNED TO RELY ON THE SAID DEFINITIONS WHEN ASKING THAT THESE DECISIONS SHOULD BE REVISED .

5 . A REQUEST OR COMPLAINT PROVIDED FOR IN ARTICLE 90 OF THE STAFF REGULATIONS, ALTHOUGH CAPABLE OF BEING SUBMITTED AT ANY TIME, CANNOT NEVERTHELESS EXTEND THE PERIOD FOR LODGING AN APPEAL TO THE COURT UNLESS IT IS MADE WITHIN THE PERIOD LAID DOWN FOR THE LATTER .

6 . A PREMATURE APPEAL AGAINST A DECISION NOT YET ARRIVED AT MAY BE VALIDATED BY A DECISION ADOPTING THE ATTITUDE IN DISPUTE .

7 . CONCLUSIONS CLARIFYING THE SCOPE OF PREVIOUS CONCLUSIONS DO NOT HAVE THE CHARACTER OF A SUBSTANTIAL MODIFICATION .

IN CASE 28/64

RICHARD MUELLER, AN OFFICIAL OF THE SECRETARIAT - GENERAL OF THE COUNCILS OF THE EUROPEAN COMMUNITIES, REPRESENTED AND ASSISTED BY MANFRED SCHWALL OF THE KARLSRUHE BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT, 6 RUE WILLY-GOERGEN,

APPLICANT,

V

COUNCIL OF THE EEC AND COUNCIL OF THE EAEC, REPRESENTED BY HANS JUERGEN LAMBERS, LEGAL ADVISER TO THE SECRETARIAT-GENERAL OF THE COUNCILS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF JACQUES LECLERC, AN OFFICIAL OF THE SECRETARIAT-GENERAL OF THE COUNCILS, 3 RUE AUGUSTE-LUMIERE,

DEFENDANTS,

APPLICATION CONCERNING THE IMPLIED REFUSAL BY THE SECRETARY-GENERAL OF THE COUNCILS OF THE REQUEST OF THE APPLICANT TO BE CLASSIFIED IN CATEGORY A AS FROM 1 JANUARY 1962,

P.247

THE NAMING OF THE DEFENDANT AS A PARTY

THE APPLICANT HAS DIRECTED HIS APPLICATION AGAINST THE SECRETARY-GENERAL OF THE COUNCILS OF THE EUROPEAN COMMUNITIES, CONSIDERING THAT SINCE, UNDER THE TERMS OF ARTICLE 90 OF THE STAFF REGULATIONS, A COMPLAINT MUST BE ADDRESSED TO THE APPOINTING AUTHORITY THE APPEAL PROVIDED FOR IN THE FOLLOWING ARTICLE MUST ALSO BE BROUGHT AGAINST THE SAID AUTHORITY IN THE ABSENCE OF EXPRESS PROVISIONS TO THE CONTRARY .

IT IS ALLEGED THAT SUCH PROCEDURE IS ALL THE MORE JUSTIFIED IN THE PRESENT CASE AS THE APPLICANT IS AN OFFICIAL OF THE COUNCILS OF THE EEC AND EAEC, WHILST THESE TWO INSTITUTIONS TOGETHER WITH THE SPECIAL COUNCIL OF MINISTERS OF THE ECSC FORM A LEGAL AND ADMINISTRATIVE UNIT HAVING A COMMON SECRETARIAT .

UNDER THE TERMS OF ARTICLE 2 OF THE AFOREMENTIONED REGULATIONS ' EACH INSTITUTION SHALL DETERMINE WHO WITHIN IT SHALL EXERCISE THE POWERS CONFERRED BY THESE STAFF REGULATIONS ON THE APPOINTING AUTHORITY '.

IT FOLLOWS FROM THIS PROVISION THEREFORE THAT THE APPOINTING AUTHORITY ACTS IN THE NAME OF THE INSTITUTION WHICH DESIGNATED IT, SO THAT ACTS CONCERNING THE LEGAL POSITION OF OFFICIALS AND WHICH MAY ADVERSELY AFFECT THEM MUST BE ATTRIBUTED TO THE INSTITUTION TO WHICH THEY ARE ATTACHED .

ALTHOUGH ARTICLE 90 OF THE STAFF REGULATIONS MAKES PROVISION FOR A COMPLAINT TO BE SUBMITTED TO THE APPOINTING AUTHORITY, THIS IS BECAUSE SUCH A PROCEDURE AMOUNTS TO AN APPEAL THROUGH OFFICIAL CHANNELS HAVING NO CONTENTIOUS ELEMENT .

LASTLY, AS EACH OF THE COMMUNITIES HAS A SEPARATE LEGAL PERSONALITY AND AS THE TREATIES DID NOT ESTABLISH THE COUNCILS AS A COMMON INSTITUTION, THE MERE FACT OF THE EXISTENCE OF A SINGLE SECRETARIAT CANNOT ESTABLISH THE LEGAL UNITY OF THE SAID COUNCILS .

UNDER THE TERMS OF THE GENERAL PROVISIONS CONCERNING LEGAL PROCEEDINGS CONTAINED IN THE EEC AND EAEC TREATIES, AN APPEAL MUST BE BROUGHT AGAINST THE INSTITUTIONS FROM WHICH THE ACT HAVING AN ADVERSE EFFECT EMANATED .

P.248

FOR ALL THESE REASONS, THIS APPLICATION MUST BE REGARDED AS BEING DIRECTED AGAINST THE COUNCILS OF THE EEC AND EAEC TO WHICH THE APPLICANT BELONGS .

ADMISSIBILITY

1 . THE DEFENDANTS MAINTAIN THAT THIS APPLICATION IS OUT OF TIME, ON THE GROUND THAT THE COMPLAINT PUT FORWARD BY THE APPLICANT ARISES FROM THE EARLIER DECISIONS OF 28 MARCH 1963 AND 21 JUNE 1963, PROMOTING HIM TO GRADE B1 AS FROM 1 JANUARY 1962 .

FURTHER, AS THE DECISION OF THE COUNCILS ADOPTING THE DEFINITIONS OF THE DUTIES AND POWERS ATTACHING TO EACH POST, WITHIN THE MEANING OF ARTICLE 5(4 ) OF THE STAFF REGULATIONS, WAS BROUGHT TO THE ATTENTION OF THE STAFF ON 15 OCTOBER 1963, THE APPLICANT WAS IN A POSITION, FROM THIS DATE AT LEAST, TO REALIZE THAT A DECISION AFFECTING HIM BEEN TAKEN .

SINCE THE APPLICANT NEITHER MADE AN APPEAL NOR SUBMITTED A COMPLAINT AGAINST THOSE DECISIONS OR THE ABOVEMENTIONED DEFINITIONS WITHIN THE PRESCRIBED TIME-LIMIT, IT IS CLAIMED THAT HE IS TIME-BARRED .

THE APPLICANT CLAIMS THAT HIS CLASSIFICATION DOES NOT CONFORM TO THE DEFINITIONS OF THE DUTIES AND POWERS ATTACHING TO EACH POST, ADOPTED BY THE COUNCILS UNDER ARTICLE 5(4 ) OF THE STAFF REGULATIONS .

THE APPLICANT CLAIMS THAT THE DECISIONS OF 28 MARCH AND 21 JUNE 1963, HAVING BEEN TAKEN BEFORE THE ADOPTION OF THESE DEFINITIONS, CANNOT BE REGARDED AS PREJUDGING THE PERMANENT CLASSIFICATION OF THE APPLICANT IN THE LIGHT OF THESE DEFINITIONS, AND THUS AS ADVERSELY AFFECTING HIM .

AS THE DEFINITIONS OF THE DUTIES AND POWERS ATTACHING TO EACH POST ARE CAPABLE OF CONSTITUTING AN IMPORTANT NEW FACT IN RESPECT OF THE DECISIONS OF 28 MARCH 1963 AND 21 JUNE 1963, IT WAS PERMISSIBLE FOR THE APPLICANT TO RELY ON THOSE DEFINITIONS WHEN ASKING THAT THESE DECISIONS SHOULD BE REVISED .

THE APPLICANT MAINTAINS THAT THIS REQUEST, AMOUNTING TO A COMPLAINT WITHIN THE MEANING OF ARTICLE 90 OF THE STAFF REGULATIONS, MAY BE MADE AT ANY TIME, THE REGULATIONS LAYING DOWN NO TIME-LIMIT IN THIS RESPECT .

ALTHOUGH IT IS TRUE THAT A COMPLAINT MAY BE SUBMITTED AT ANY TIME, IT CANNOT NEVERTHELESS EXTEND THE PERIOD FOR LODGING AN APPEAL TO THE COURT UNLESS IT IS MADE WITHIN THE PERIOD LAID DOWN FOR THE LATTER .

P.249

IF THE CONTRARY WERE THE CASE, IT WOULD BE PERMISSIBLE FOR ANY OFFICIAL TO THWART THE INTENTION OF THE AUTHORS OF THE STAFF REGULATIONS, CLEARLY EXPRESSED IN THE WORDING OF THOSE REGULATIONS, TO LIMIT THE PERIOD OF TIME DURING WHICH THE LEGALITY OF AN ADMINISTRATIVE MEASURE MAY BE QUESTIONED .

IT HAS BEEN ESTABLISHED, HOWEVER, THAT THE DECISION APPLYING THE DEFINITIONS OF DUTIES ADOPTED BY THE COUNCILS IN THE CASE OF THE APPLICANT WAS NOT MADE UNTIL 18 JULY 1964 AND WAS NOT MADE KNOWN TO HIM UNTIL 8 OCTOBER 1964 .

IN VIEW OF THIS BELATED APPLICATION OF THE SAID DEFINITIONS, THE DEFENDANT CANNOT RAISE THE OBJECTION OF INADMISSIBILITY ON THE GROUND THAT TIME HAS RUN OUT AGAINST THE APPLICANT'S APPLICATION, WHICH WAS MADE ON 2 JULY 1964 AND THUS PRIOR TO ITS OWN DECISION .

ALTHOUGH THE APPLICATION OF 2 JULY 1964 WAS PREMATURE, AS THE COUNCILS HAD NOT YET ARRIVED AT THEIR DECISION BY THAT DATE, IT WAS VALIDATED BY THE SUBSEQUENT DECISION ADOPTING THE ATTITUDE IN DISPUTE .

CONSEQUENTLY IN THE CIRCUMSTANCES OF THE PRESENT CASE THE OBJECTION OF INADMISSIBILITY MUST BE REJECTED .

2 . IN ADDITION, THE APPLICANT MODIFIES IN THE REPLY THE CONCLUSIONS SET OUT IN THE APPLICATION IN WHICH HE REQUESTS PRINCIPALLY TO BE CLASSIFIED IN GRADE A3 .

THE DEFENDANT PLEADS THE INADMISSIBILITY OF THESE CONCLUSIONS BY POINTING OUT THAT THEY ARE CONTRARY TO ARTICLE 38(1)(D ) OF THE RULES OF PROCEDURE .

NEVERTHELESS THE SAID CONCLUSIONS DO NOT AMOUNT TO A SUBSTANTIAL MODIFICATION OF THE CONCLUSIONS CONTAINED IN THE APPLICATION AND AIMED AT THE RECLASSIFICATION OF THE APPLICANT IN ACCORDANCE WITH THE PROVISIONS OF THE STAFF REGULATIONS APPLICABLE IN THE PRESENT CASE . THEY ARE CONFINED IN FACT TO CLARIFYING THE SCOPE OF THE PREVIOUS CONCLUSIONS IN RESPECT OF THE FORESEEABLE RESULT OF THE APPLICATION OF THE RULES OF THE STAFF REGULATIONS .

IN THESE CIRCUMSTANCES THEY ARE ADMISSIBLE .

THE SUBSTANCE OF THE CASE

IN SUPPORT OF HIS APPLICATION THE APPLICANT PUTS FORWARD THE DECISION OF THE COUNCILS OF 21 JUNE 1963, ADOPTING THE TABLE OF DEFINITIONS OF THE DUTIES AND POWERS ATTACHING TO EACH POST, WHICH WAS BROUGHT TO THE KNOWLEDGE OF THE STAFF ON 15 OCTOBER 1963 .

P.250

HE MAINTAINS THAT THE POST WHICH HE HOLDS CORRESPONDS, ACCORDING TO THIS TABLE, TO THAT OF FINANCIAL COMPTROLLER, THE DUTIES OF WHICH FALL WITHIN CAREER BRACKET A5-A4, OR EVEN WITHIN GRADE A3 .

HE POINTS OUT FOR THIS PURPOSE THAT THE DUTIES WHICH HE CARRIES OUT CORRESPOND TO ADMINISTRATIVE AND ADVISORY DUTIES WITHIN THE MEANING OF THE SECOND SUBPARAGRAPH OF ARTICLE 5(1 ) OF THE STAFF REGULATIONS, REQUIRING UNIVERSITY EDUCATION OR EQUIVALENT PROFESSIONAL EXPERIENCE .

THUS THE APPOINTING AUTHORITY, BY ITS REFUSAL TO CONFER UPON HIM THE GRADE CORRESPONDING TO THOSE DUTIES AND BY CLASSIFYING HIM IN GRADE B1, HAS INFRINGED ARTICLE 5(4 ) OF THE REGULATIONS AND ANNEX I THERETO, AS WELL AS THE ABOVE-MENTIONED DECISION OF 21 JUNE 1963 .

THE APPLICANT CARRIES OUT THE DUTIES OF FINANCIAL COMPTROLLER, UNDER ARTICLE 25 OF THE FINANCIAL REGULATIONS OF THE THREE COMMUNITIES, WHICH ENTERED INTO FORCE ON 1 JANUARY 1963 .

THE REFERENCE TO SUPERVISORY DUTIES APPEARS IN THIS TABLE BOTH WITH REFERENCE TO POSTS IN CATEGORY A AND TO THOSE IN CATEGORY B .

IN THESE CIRCUMSTANCES, THE TABLE OF THE DEFINITIONS OF DUTIES DOES NOT BY ITSELF MAKE IT POSSIBLE TO DECIDE TO WHICH CATEGORY THE SUPERVISORY DUTIES EXERCISED BY THE APPLICANT BELONG .

IT IS THUS APPROPRIATE, IN ORDER TO RESOLVE THIS PROBLEM, TO CONSIDER THE NATURE OF THE DUTIES IN DISPUTE, TAKING INTO ACCOUNT THE PROVISIONS RELATING TO THEM IN THE FINANCIAL REGULATION MENTIONED ABOVE .

UNDER ARTICLES 30, 31 AND 40 OF THAT REGULATION, A FINANCIAL COMPTROLLER IS ENTRUSTED WITH THE TASK OF CHECKING, BOTH AS REGARDS COMMITMENTS TO INCUR EXPENDITURE AND ORDERS TO PAY, THE CORRECTNESS OF THE BUDGETARY HEADING AND OF THE AVAILABILITY OF CREDIT, AND GENERALLY OF EXAMINING THE REGULARITY AND THE CONFORMITY OF EXPENDITURE WITH REGARD TO ALL THE APPLICABLE PROVISIONS AS WELL AS THE MEASURES ADOPTED IN IMPLEMENTATION THEREOF .

IT APPEARS FROM THESE PROVISIONS THAT THE SUPERVISION OR CHECKING EXERCISED BY A FINANCIAL COMPTROLLER CONSISTS IN ESSENCE OF EXAMINING WHETHER THE COMMITMENTS TO INCUR EXPENDITURE OR THE ORDERS TO PAY IN RESPECT OF EACH ITEM OF EXPENDITURE ARE COVERED BY THE PROVISIONS OF THE RULES IN FORCE . IT DOES NOT INCLUDE AN EVALUATION OF THE EXPEDIENCY OF EACH ITEM OF EXPENDITURE OR OF GOOD FINANCIAL MANAGEMENT, SUCH APPRAISALS COMING WITHIN THE EXCLUSIVE PROVINCE OF OTHER BUDGETARY OR FINANCIAL AUTHORITIES .

P.251

ALTHOUGH IT IS TRUE THAT ARTICLE 2 OF THE ABOVE - MENTIONED FINANCIAL REGULATION PROVIDES THAT BUDGET APPROPRIATIONS MAY BE USED ONLY IN CONFORMITY WITH PRINCIPLES OF ECONOMY AND GOOD FINANCIAL MANAGEMENT, IT IS NEVERTHELESS NOT FOR A FINANCIAL COMPTROLLER TO ENSURE OBSERVANCE OF THESE PRINCIPLES, HIS REFUSAL TO GIVE APPROVAL FOR A COMMITMENT TO INCUR EXPENDITURE NOT HAVING THE CHARACTER OF A FINAL DECISION .

IT MAY BE INFERRED, THEREFORE, THAT THE DUTIES OF A FINANCIAL COMPTROLLER AS LAID DOWN IN THE FINANCIAL REGULATION DO NOT NECESSARILY REQUIRE KNOWLEDGE OF A UNIVERSITY LEVEL OR EQUIVALENT PROFESSIONAL EXPERIENCE .

MOREOVER THE FACTS AND LEGAL CONSIDERATIONS SUBMITTED FOR CONSIDERATION BY THE COURT ARE NOT SUCH THAT IT EMERGES CLEARLY FROM THEM THAT THE DUTIES OF CHECKING OR SUPERVISION ENTRUSTED TO THE APPLICANT ARE IN THE PRESENT CASE SO FAR-REACHING THAT THEY REQUIRE SUCH KNOWLEDGE OR EQUIVALENT PROFESSIONAL EXPERIENCE .

FURTHER, THE INDEPENDENCE ENJOYED BY THE APPLICANT IN THE EXERCISE OF HIS DUTIES AND THE POSSIBILITY FOR HIM TO EXERCISE SUPERVISION OVER ACTS CARRIED OUT BY OFFICIALS CLASSIFIED IN VERY HIGH GRADES ARE AN INDISPENSABLE REQUIREMENT FOR THE EXERCISE OF SUPERVISORY ACTIVITIES, BUT THEY GIVE NO INDICATION OF THE QUALITY AND NATURE OF THE SUPERVISION CARRIED OUT IN THE PRESENT CASE .

THE FACT THAT THE APPLICANT IS PLACED DIRECTLY UNDER THE AUTHORITY OF A DIRECTOR-GENERAL WHO IS AT THE SAME TIME HIS REPORTING OFFICER IS NOT DECISIVE, FOR IT IS A CHARACTERISTIC OF A FINANCIAL COMPTROLLER TO HAVE THE ADVANTAGE OF CONSIDERABLE INDEPENDENCE IN THE EXERCISE OF HIS DUTIES .

LASTLY, THE FAVOURABLE REPORTS MADE IN RESPECT OF HIM BY HIS DIRECTOR-GENERAL INVOLVE A VALUE JUDGMENT CONCERNING HIS ABILITY AND HIS COMPETENCE IN THE EXERCISE OF HIS DUTIES, BUT DO NOT ENABLE THE NATURE OF THE LATTER TO BE DETERMINED FOR THE PURPOSE OF THEIR CLASSIFICATION .

FOR ALL THESE REASONS IT DOES NOT APPEAR THAT THE DUTIES EXERCISED BY THE APPLICANT NECESSARILY CORRESPOND TO ADMINISTRATIVE AND ADVISORY DUTIES AS DEFINED IN THE SECOND SUBPARAGRAPH OF ARTICLE 5(1 ) OF THE STAFF REGULATIONS .

BY CLASSIFYING THE APPLICANT IN GRADE B1, THE APPOINTING AUTHORITY HAS THUS NOT DISREGARDED THIS ARTICLE AND ANNEX I TO THE STAFF REGULATIONS .

THE APPLICATION IS CONSEQUENTLY DISMISSED AS UNFOUNDED .

THE APPLICANT HAS FAILED IN HIS APPLICATION .

UNDER THE TERMS OF ARTICLE 69(2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

HOWEVER, UNDER ARTICLE 70 OF THE RULES OF PROCEDURE, COSTS INCURRED BY THE INSTITUTIONS IN APPLICATIONS BY SERVANTS OF THE COMMUNITIES SHALL BE BORNE BY THE INSTITUTIONS .

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . DISMISSES APPLICATION 28/64 AS UNFOUNDED;

2 . ORDERS THE APPLICANT TO PAY THE COSTS OF THE PROCEEDINGS, WITH THE EXCEPTION OF THOSE INCURRED BY THE DEFENDANT .