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WHO IS RESPONSIBLE FOR DELIVERING THE ITEM?
(NOTE) Consequently, the requirement that a document for which there is no legal basis be presented in order for the owner of the goods to take delivery, and the practice whereby the agent representing the carrier collects payment from the owner of the goods in exchange for this document, rather than the carrier itself, has been a long-standing issue.
(NOTE) The State Council’s decision established that the delivery of goods located in a customs warehouse or temporary storage facility is part of the customs clearance process; that, pursuant to the Customs Code, the relevant regulations must be issued by the Ministry of Trade; and that the provisions of private law regarding contractual terms cannot be applied in this matter.
The Council of State annulled the amendments made to Article 94 and Paragraph 1 of Article 130 of the Customs Regulation. What does this annulment mean? Behind this annulment lies a massive dispute over “ordino.” What is “ordino”? Let’s start from there.
What Is Ordino?
Ordino, pursuant to Article 50 of the repealed Customs Law No. 1615, dated June 24, 1981, the “Regulation Concerning the Customs Obligations and Inspections of Rail, Sea, and Air Transport Operators,” dated May 25, 1981, and numbered 8/3005, which was enacted pursuant to Article 50 of the repealed Customs Law No. 1615. It was a document established by the Ministries of Customs and Monopolies and Transportation to track the movement and handling of containers within the port.
Since Customs Law No. 1615 was repealed by Customs Law No. 4458 dated November 19, 1999, the regulatory authority of the Regulation ceased to exist. Consequently, pursuant to Council of Ministers Decision No. 2007/12215 dated May 17, 2007, and in accordance with the principle of equality in administrative proceedings, the Regulation was also repealed.
Why Is There Such Insistence on the Ordino Amendment?
However, customs brokers argued that the presentation of an ordino was mandatory for importers to clear their goods through customs, and thus maintained the continued use of this document, even though its name had changed. Although the customs authority consistently stated in writing that the presentation of an ordino is not required at any stage of customs procedures and that the bill of lading is sufficient for the delivery of goods, the carrier agents argued that it is not possible to take delivery of the cargo without presenting the bill of lading to customs officials or to temporary storage facilities and warehouse operators. As justification, it was argued that the bill of lading constitutes a commercial transaction falling under the realm of private law between the consignee and the carrier, and that the customs authority and temporary storage facility operators cannot be parties to this process.
At one point, the “ordino” practice, which had been abolished by a Council of Ministers Decision, was reintroduced under the name “cargo delivery and instruction form” via a circular published in 2011 by the General Directorate of Maritime Trade under the Undersecretariat of Maritime Affairs. Following the collection of exorbitant fees for this document, the Ministry of Transport and Infrastructure imposed a cap on the fee.
Consequently, the requirement that a document lacking a legal basis be presented for the consignee to take delivery of the goods, and the practice of the agent representing the carrier collecting payment for this document from the consignee instead of the carrier, has been a long-standing issue.
Amendment to the Customs Regulation
Since the delivery of goods by temporary storage facilities and warehouses is governed by customs regulations, there have been numerous requests to the customs authority asking these facilities to release the goods without requiring a customs release order. The General Directorate of Customs, having repeatedly stated that customs regulations do not require a delivery order, argued that the stage following the payment of taxes and the goods becoming ready for delivery has no relation to customs procedures. As the dispute persisted, amendments were made to Articles 94 and 130 of the Customs Regulation in line with this view. The regulations annulled by the Council of State’s decision are these amendments.
Decisions of the 10th Chamber of the Council of State dated April 30, 2026, Case No. E:2022/3835, Decision No. K:2026/2658; Case No. E:2022/4573, Decision No. K:2026/2659; E:2022/4230 K:2026/2657, and E:2022/4910 K:2026/2660, the Council of State ruled that the delivery of goods is part of the customs procedure and that the authority to regulate this matter lies with the Ministry of Trade.
Reasons for the State Council’s Decision
The reasoning behind the Council of State’s decision can be briefly summarized under the following headings:
- Pursuant to the principle of the hierarchy of norms, the Regulation may not contain provisions that expand or restrict a right granted by law;
- Prior to the amendment, the delivery of goods by the customs authority was contingent upon the presentation of the bill of lading; however, following the amendment, it is understood that the delivery of goods is left to the terms of the contract between the owner of the goods, the carrier, the operating entity, or their representatives,
- Under the Customs Law No. 4458, it is stipulated that the goods shall be released upon fulfillment of the conditions for their subjection to the relevant regime and payment of customs duties,
- Consequently, since the Law contains no exceptional provision regarding how the goods are to be delivered other than by the customs authorities or by other parties, the provisions of the Regulation at issue, which leave the delivery of the goods to the terms of the contract, exceed the scope of the legal framework;
- Goods in temporary storage must be removed from the temporary storage facility within the timeframes specified by the Law through “a customs-approved procedure or use” or “liquidation”; the responsibility for monitoring this process lies with the customs authority,
- The delivery of goods in temporary storage by the customs authority is a prerequisite for ensuring the application of the provisions of the Law,
- It is understood that, in essence, by entrusting the duty of delivering the goods to the customs authority, the legislature did not consider this duty to be limited solely to the legal relationship between the owner of the goods, the carrier, and the operating entity,
- The delivery of goods by the customs authority cannot be regarded as an interference in the private law relationship between the owner of the goods, the carrier, and the operating entity,
- The legal status and liabilities of the temporary storage facility operator and the customs bonded warehouse operator are also distinct and must be distinguished from the legal relationship between the operators and the owner of the goods.
Conclusion
In conclusion, the Council of State’s decision established that the delivery of goods located in a customs bonded warehouse or temporary storage facility is part of customs procedures; that, pursuant to the Customs Code, the relevant regulations must be issued by the Ministry of Trade; and that the provisions of private law regarding contractual terms cannot be applied in this matter.
However, it would not be accurate to predict that this decision will lead to a change in practice. Regardless of the regulations, it is an inevitable reality that traditional practice will continue. Importers seeking to take delivery of their goods will continue to be forced to purchase an ordino document, which is not provided for in the legislation, from agents representing the freight forwarder.
