COMPLAINT IN THESE PROCEEDINGS, IT MUST NEVERTHELESS BE POINTED OUT THAT THE WORDING OF ARTICLE 10 OF THE VOGELWET, UNLIKE ARTICLE 9*(1 ) OF THE DIRECTIVE, DOES NOT MAKE THE GRANT OF PERMITS CONDITIONAL UPON THE ABSENCE OF ANY OTHER SATISFACTORY SOLUTION .
14 THE SECOND COMPLAINT MUST THEREFORE BE UPHELD .
THIRD COMPLAINT : CAGE BIRDS AND STUFFED PROTECTED BIRDS
15 THE COMMISSION POINTS OUT THAT THE LIST OF BIRDS THAT, PURSUANT TO ARTICLES 9 AND 10 OF THE VOGELBESLUIT WHICH APPLY ARTICLES 11 AND 12 OF THE VOGELWET, ARE NOT PROTECTED AS FAR AS CAPTURE FOR CAGING OR HUNTING ARE CONCERNED, IS NOT IDENTICAL TO THE LIST OF BIRDS REFERRED TO IN ARTICLE 6*(2 ) AND ( 3 ) OF THE DIRECTIVE AND CONTAINED IN ANNEX III . MOREOVER, THE COMMISSION CONSIDERS THAT ARTICLES 15, 15 BIS AND 16 OF THE VOGELWET, WHICH ALLOW PERMITS TO BE ISSUED FOR TRADE IN PROTECTED DEAD AND STUFFED BIRDS, ARE NOT IN CONFORMITY WITH THE CRITERIA LAID DOWN IN ARTICLE 9*(1 ) OF THE DIRECTIVE .
16 THE NETHERLANDS GOVERNMENT STATES IN THE FIRST PLACE THAT NO PERMIT HAS BEEN GRANTED FOR MORE THAN 45 YEARS FOR WILD BIRDS TO BE CAPTURED FOR CAGING OR FOR TRADE IN SUCH BIRDS . THE WAY IN WHICH ARTICLES 11 AND 12 OF THE VOGELWET ARE APPLIED IS THEREFORE COMPATIBLE WITH ARTICLE 6*(2 ) AND ( 3 ) OF THE DIRECTIVE . ON THE SECOND POINT, THE NETHERLANDS GOVERNMENT CONTENDS THAT THE ONLY BIRDS WHICH MAY BE STUFFED ARE BIRDS WHICH HAVE MANIFESTLY DIED FROM NATURAL CAUSES OR DIED WITHOUT THE KNOWLEDGE OF THE APPLICANT FOR THE PERMIT AND WITHOUT HIS BEING RESPONSIBLE FOR THEIR DEATH .
17 AS REGARDS THE FIRST POINT, IT MUST BE STATED THAT THE FACT THAT THE LIST OF BIRDS IN ARTICLES 9 AND 10 OF THE VOGELBESLUIT IS NOT IDENTICAL TO THE LIST IN ANNEX III TO THE DIRECTIVE CONSTITUTES AN INADEQUATE TRANSPOSITION OF ARTICLE 6*(2 ) AND ( 3 ) OF THE DIRECTIVE INTO NETHERLANDS LAW . AS REGARDS THE SECOND POINT, IT MUST BE STATED THAT THE DEROGATIONS CONCERNING THE PROTECTION OF BIRDS ALLOWED BY ARTICLES 15, 15 BIS AND 16 OF THE VOGELWET CAN BE JUSTIFIED ONLY ON THE BASIS OF THE CRITERIA LAID DOWN IN ARTICLE 9*(1 ) OF THE DIRECTIVE . HOWEVER, THOSE CRITERIA ARE NOT SATISFIED IN THIS CASE .
18 ALTHOUGH THE ADMINISTRATIVE PRACTICE FOLLOWED IN THE NETHERLANDS APPEARS IN BOTH CASES TO BE IN CONFORMITY WITH THE PROVISIONS OF THE DIRECTIVE - A FACT WHICH, MOREOVER, IS ACKNOWLEDGED BY THE COMMISSION - IT MUST BE REMEMBERED THAT THE COURT HAS HELD THAT "MERE ADMINISTRATIVE PRACTICES, WHICH BY THEIR NATURE ARE ALTERABLE AT WILL BY THE AUTHORITIES AND ARE NOT GIVEN THE APPROPRIATE PUBLICITY, CANNOT BE REGARDED AS CONSTITUTING THE PROPER FULFILMENT OF OBLIGATIONS UNDER THE TREATY" ( JUDGMENT OF 15 OCTOBER 1986 IN CASE 168/85 COMMISSION V ITALY (( 1986 )) ECR 2945 ).
19 THE THIRD COMPLAINT MUST THEREFORE