26.06.2026
The new Law of Ukraine “On Public Procurement”, officially published in the newspaper “Holos Ukrainy” dated June 23, 2026 No. 122, contains not only a comprehensive reform of procurement legislation, but also one extremely important norm for the entire market for the supply of goods with volatile pricing.
This is a change to paragraph 2 of part five of Article 41 of the current Law of Ukraine “On Public Procurement” dated December 25, 2015 No. 922-VIII.
The new version of this norm stipulates that an increase in the price per unit of goods of up to 10 percent is allowed in proportion to the increase in the price of such goods on the market in the event of price fluctuations, provided that such a change will not lead to an increase in the total amount of the procurement contract. In this case, the restriction of “no more than 10 percent” applies to each individual case of an increase in the price per unit of goods, without limiting the number of such changes.
Separately, the legislator confirmed a special logic for goods with high market volatility: gasoline, diesel fuel, natural gas and electricity. For them, a time limit on changing the price per unit of goods does not apply.
But the key point is not only the new wording itself. The key is the transitional provision, according to which the provisions of paragraph 2 of part five of Article 41 of Law No. 922-VIII as amended by the new Law apply to legal relations in the field of public procurement that arose from the date of entry into force of the Law of Ukraine “On Public Procurement” dated December 25, 2015 No. 922-VIII.
In other words, the legislator directly established the retrospective effect of this provision.
This decision is of fundamental importance. It changes not only the future practice of concluding additional agreements, but also the legal assessment of a significant array of already concluded agreements, court disputes, conclusions of state financial control bodies and criminal proceedings, which were based on the thesis of an allegedly absolute aggregate ceiling of 10 percent throughout the entire term of the agreement.
The public discussion around the retrospective effect of laws is often mistakenly reduced to the simplified slogan: “the law does not have retroactive effect.” In fact, the constitutional doctrine is much more subtle.
Article 58 of the Constitution of Ukraine establishes that laws and other regulatory legal acts do not have retroactive effect in time, except in cases where they mitigate or cancel the liability of a person.
This norm protects a person, business and society from arbitrary retroactive deterioration of the legal situation. Formally, the state cannot declare unlawful behavior today that was lawful yesterday and punish it, nor can it retroactively establish a new obligation, a new sanction, a new prohibition or a new burden. At the same time, the situation with the “10% ceiling” showed that through judicial interpretation, in particular the position of the Grand Chamber of the Supreme Court, the state actually received an instrument that, in its consequences, not only came close to such a retrospective deterioration in the position of the participants in legal relations, but actually became the apogee of such an approach.
But a completely different situation arises when the law does not worsen, but improves the legal position of individuals; does not establish new responsibility, but eliminates uncertainty; does not narrow the rights, but expands the possibilities of the parties; does not create a new sanction, but removes the basis for formal prosecution for behavior that corresponded to the economic nature of the market.
This is exactly what the new wording of paragraph 2 of part five of Article 41 is.
It does not impose new obligations on customers or suppliers for the past period. It does not create new liability. It does not legalize corruption, fictitious documents, collusion, or price increases without market grounds. It only establishes that the 10 percent restriction applies to each individual case of a change in the price per unit of goods, and is not a cumulative ceiling for the entire term of the contract.
That is, the legislator did not “rewrite the past” in a punitive sense. It provided a retrospective benefit – legal certainty for participants and customers of public procurement who acted in conditions of objective market volatility and concluded additional agreements without increasing the total amount of the contract.
A constitutional problem could arise when a retrospective norm worsens the situation of individuals: for example, it would declare previously valid contracts null and void, establish new fines, expand the scope of the criminal code, etc. of the initial offense or would introduce new grounds for collecting funds. But here the opposite happens: the norm reduces the risk of liability, expands the contractual possibility and restores the balance between law, economy and the real functioning of the market.
The Constitutional Court of Ukraine in its decision of February 9, 1999 No. 1-рп/99 in the case on the retroactive effect in time of laws and other regulatory legal acts formulated the basic approach: regulatory legal acts, as a rule, regulate relations from the moment they enter into force; the effect of the act in time can be direct, ultraactive or retroactive; the general rule is that the law applies to facts and events that occurred during its validity.
At the same time, the Constitutional Court recognized that the Constitution itself provides for an exception to this rule – the retroactive effect of laws that mitigate or cancel the liability of an individual. Regarding legal entities, the Constitutional Court separately noted that the retroactive effect of provisions that mitigate or cancel the liability of legal entities can be provided for by direct indication in the law.
This is exactly the case that we see in the new Law.
The legislator did not leave the issue at the level of interpretation. It directly established that the new wording of paragraph 2 of part five of Article 41 applies to legal relations in the field of public procurement that have arisen since the date of entry into force of Law No. 922-VIII.
Such a construction corresponds to the logic of the Constitutional Court’s decision: retrospectivity is allowed if it does not worsen the position of the person, and the law directly determines its temporal effect.
The doctrine of legal certainty should also be taken into account separately. The Constitutional Court has repeatedly emphasized that the principle of the rule of law encompasses legal certainty, predictability of law enforcement, and respect for legitimate expectations. It was the legal uncertainty in the issue of the “10% ceiling” that led to a situation where the same economic behavior could be assessed as a normal mechanism for adapting the contract to the market or as a basis for a lawsuit by the prosecutor, a conclusion by the State Audit Office, or criminal prosecution of officials.
The new norm eliminates this uncertainty.
The European Court of Human Rights does not consider retrospective legislation as an automatic violation of the Convention.
In the civil sphere, the ECtHR proceeds from the fact that the legislator may change a regulation that affects already existing legal relations, but such intervention must not be arbitrary, must not have the sole purpose of influencing the outcome of a specific legal dispute, especially if the State is a party to such a dispute, and must be justified by compelling considerations of general interest.
In the criminal sphere, the ECtHR, on the contrary, expressly recognizes the principle of lex mitior – the application of a more lenient law. If, after the act has been committed, the legislation changes in favor of the person, the court must take into account the more favorable regulation, if the proceedings have not yet been finally concluded.
The Court of Justice of the European Union also does not depart from the absolute prohibition of retrospectivity. In case C-331/88 Fedesa, the ECJ noted that, outside the criminal sphere, retrospective action may be permissible if the objective pursued by the regulation so requires and if the legitimate expectations of individuals are respected.
These approaches are well applicable to the situation with public procurement.
Firstly, it is not about punishment, but about contractual and economic regulation.
Secondly, the norm is favorable to the parties to the contracts and does not worsen the situation of the participants.
Thirdly, there is an obvious public interest: stabilization of the public procurement market, protection of the continuity of supply of electricity, natural gas, fuel and other volatile goods, cessation of mass formal appeals of contracts that were performed economically necessary function.
Fourthly, the norm does not deprive the prosecutor’s office or financial control authorities of the opportunity to verify the good faith of the parties. If the additional agreement was concluded without market grounds, with fictitious documents, with an increase in the total amount of the contract, in collusion or with a clear overpricing, such behavior does not receive immunity. The new norm only eliminates the erroneous formula, according to which the very fact of a cumulative increase in the price per unit of goods by more than 10% hundredths was automatically considered a violation.
Two decisions of the Grand Chamber of the Supreme Court on the application of the 10 percent restriction – in particular, the resolution of January 24, 2024 in case No. 922/2321/22 and the resolution of November 21, 2025 in case No. 920/19/24 – became key guidelines for prosecutorial claims, conclusions of regulatory authorities and criminal legal assessment of the actions of officials of the contracting authorities.
The logic of these decisions was that an increase in the price per unit of goods on the basis of paragraph 2 of part five of Article 41 cannot lead to a cumulative increase in the price per unit of goods by more than 10 percent compared to the initial contract price.
The new version of the Law directly refutes this very normative conclusion.
It is important to correctly formulate the legal effect. The legislator does not “cancel” the decision of the Grand Chamber of the Supreme Court. Court decisions remain acts of justice in specific cases. But the legislator changes and retrospectively clarifies the very rule of law that was the subject of judicial interpretation.
Therefore, the legal position of the Grand Chamber loses its normative applicability for those cases where the sole or key basis for the claim is the assertion that 10 percent is a cumulative ceiling for the entire term of the contract.
From now on, the court cannot limit itself to referring to the previous approach of the Grand Chamber without assessing the new version of the Law and the special transitional provision on its application to legal relations that arose from the date of entry into force of Law No. 922-VIII.
At the same time, this does not mean automatically recognizing all additional agreements as lawful. The court must verify other legally significant circumstances:
This is the correct model after the new Law: not the formal automatism of “over 10% – therefore a violation”, but a full assessment of the reality, marketability, proportionality and good faith of each change.
In court disputes where prosecutors, customers or other entities challenge additional agreements based on the results of the State Procurement Service’s control measures, market participants need to change their procedural strategy. The first block is to immediately declare a change in regulatory regulation. In each case where the subject of the dispute is additional agreements under paragraph 2 of part five of Article 41, the party must submit written explanations with a reference to the new version of the norm and the transitional provision on its application to legal relations that have arisen since the date of entry into force of Law No. 922-VIII. The second block is to distinguish formal evidence from real violations. style=”font-weight: 400;”>The prosecutor or the customer can no longer limit themselves to the argument: “the cumulative increase in the price per unit of goods exceeded 10 percent.” After the new Law, this argument in itself loses its legal significance. The plaintiff must prove otherwise: the absence of market fluctuations, the disproportionality of the change, an increase in the total amount of the contract, the fictitiousness of documents, the bad faith of the parties, or another independent defect in the transaction.
The third block is to form an evidentiary base of marketability.
The fourth block is to review final decisions.
If there is already a final court decision in the case, the new Law does not automatically cancel it. The issue of revision should be resolved exclusively within the framework of the procedural mechanisms provided for by the Commercial Procedure Code, the Civil Procedure Code or the Code of Administrative Procedure, depending on the jurisdiction and the subject of the dispute. However, for cases that are still under consideration, the new norm should be fully included in the subject of legal assessment.
VThe conclusions of the state financial control bodies, based solely on the thesis of a cumulative ceiling of 10 percent, need to be reassessed.
Customers and suppliers should:
Control should not be formal, but substantive. After the new Law, the legal question is not whether the price per unit of goods exceeded the initial level by more than 10 percent in total, but whether each individual change was market-based, proportionate and did not increase the total amount of the contract.
The consequences for criminal proceedings against officials of customers are particularly important.
In many cases, the criminal-legal logic was built according to a simplified scheme:
After the new Law, such a scheme no longer works.
If each individual price change was within 10 percent, was proportional to market fluctuations, did not increase the total amount of the contract, was documented and related to a product with real market volatility, then the presence of several additional agreements in itself cannot be a sign of a crime.
For criminal law, this is not enough.
The prosecution must prove not only the fact of signing additional agreements, but also all the elements of the criminal offense: illegality, damage, causal connection, form of guilt, motive, method, knowledge of the officials persons, the presence or absence of a bona fide legal and economic justification.
After the retrospective amendment of the Law, a formal thesis of illegality due to a cumulative excess of 10 percent cannot be a sufficient basis for suspicion, an indictment or an expert opinion on damages.
It is advisable for officials of the contracting authorities in such cases:
At the same time, the new Law is not an indulgence. If the case contains evidence of fictitious certificates, concerted actions, deliberate price inflating, forgery of documents, unjustified payment for undelivered goods, or personal gain, such behavior must be assessed independently. But it can no longer be replaced by a simple arithmetic statement: “more than 10 percent in total – therefore a crime.”
The new version of the Law moves the discussion from the plane of formal fear to the plane of substantive legal assessment.
Previously, customers and suppliers found themselves in a legal trap. On the one hand, the market for electricity, natural gas, fuel and other goods was changing quickly and objectively. On the other hand, the public procurement contract was rigidly tied to the initial price formed on the date of the auction, often under the influence of dumping and high competition.
If the market price increased, the parties had only a few bad options: to terminate the contract, interrupt supplies, conclude new purchases at even higher prices, or adapt the contract through additional agreements with a decrease in volumes and without increasing the total contract amount.
Economically, the third option was often the most rational.
Legally, it became the subject of massive disputes and criminal risks due to the excessively narrow interpretation of the “10% ceiling”.
The new Law returns the norm to its economic meaning. 10 percent is a safeguard against a sudden price spike, not a ban on responding to the real market throughout the entire term of the contract. If the market changes several times, the contract can also be changed several times, provided that it is proportional, documented, and the total contract amount does not increase.
This is not a weakening of control. It is a return of control to the right subject.
It is not the arithmetic myth of the “cumulative ceiling” that needs to be controlled, but the real risks: collusion, fictitiousness, disproportionality, lack of market, overpricing, unfairness, damage to the budget.
The retroactive effect of the new wording of paragraph 2 of part five of Article 41 of the Law of Ukraine “On Public Procurement” is constitutionally justified, legally correct and economically necessary.
It does not violate Article 58 of the Constitution of Ukraine, since it does not worsen the position of individuals, does not establish new liability and does not narrow rights. On the contrary, it expands the legal possibilities of the parties, mitigates the consequences of previous legal uncertainty and provides an additional guarantee to individuals and legal entities.
It does not cancel the judgments of the Grand Chamber of the Supreme Court as acts of justice in specific cases, but changes the regulatory environment in which such conclusions can be applied in the future. Where a lawsuit, DASU conclusion, or criminal suspicion is based solely on the thesis of a cumulative excess of 10 percent, such a legal construction loses its proper basis after the new Law.
For the market, this means a transition to a more mature model: each additional agreement should be evaluated not by formal fear, but by its essence – marketability, proportionality, good faith, documentary confirmation, no increase in the total amount of the contract, and the absence of a corruption component.
