07.08.2026
Energy Club sent to the Ministry of Economy and Environment of Ukraine proposals for the draft Law of Ukraine on amendments to Clause 7 of Section XIV of Law of Ukraine No. 4888-IX regarding the application of the new version of the “10% rule” in public procurement.
The appeal was prepared in connection with the consideration of the issue of further legal regulation of changes in the price per unit of goods in procurement contracts, in particular in the field of procurement of electricity and other energy resources.
Energy Club emphasized that the simple exclusion of Clause 7 of Section XIV of Law No. 4888-IX without the introduction of a replacement regulation will not eliminate legal uncertainty. In this case, questions will remain regarding the legal assessment of changes in the price per unit of goods introduced in the context of ambiguous or multiple interpretations of the previous version of the norm.
For energy market participants, this issue has direct practical consequences. The interpretation of the “10% rule” was used when challenging additional agreements, resolving claims for the return of funds, exercising state financial control, and criminally assessing the actions of officials.
At the same time, exceeding the cumulative 10 percent indicator in itself is not defined by the legislation as a separate element of a civil, administrative, or criminal offense. The legality of each price change depends on the totality of the conditions established by law and the factual circumstances.
Energy Club proposed not to abandon the mechanism of legal certainty, but to set out paragraph 7 of Section XIV of Law No. 4888-IX in a more precise wording.
In particular, the Club proposes to establish that doubts regarding the legality of changes in the price per unit of goods, included in procurement contracts before the entry into force of Law No. 4888-IX, which arise as a result of an ambiguous or multiple interpretation of paragraph 2 of part five of Article 41 of the Law of Ukraine “On Public Procurement”, should be interpreted in favor of the legality of such changes only if three conditions are simultaneously present:
Failure to comply with at least one of these conditions should exclude the application of the proposed rule.
“The purpose of our proposal is not to legalize any price changes, but to provide legal certainty for bona fide procurement participants. This is especially important for the electricity market, where the price is highly volatile, and the previous ambiguity of the norm has already led to a significant number of disputes, financial claims and risks for customers and suppliers,” said Andriy Kostrytsia, President of Energy Club.
Energy Club emphasized that the proposed approach does not eliminate liability for violations if they were actually committed. It is only about preventing the automatic recognition of price changes as unlawful in situations where each individual increase corresponded to the 10 percent limit, was confirmed by market fluctuations and did not lead to an increase in the total amount of the contract.
Energy Club asks the Ministry of Economy and Environment of Ukraine to take into account the above-mentioned proposal when finalizing the relevant draft law, to consider the possibility of including the updated version of paragraph 7 of Section XIV of Law No. 4888-IX in the draft act to be submitted to the Cabinet of Ministers of Ukraine, and to process the attached package of accompanying documents.
