03.09.2026
On September 3, a working meeting was held at the premises of the Cassation Economic Court within the Supreme Court on the implementation and enforcement of certain provisions of the legislation in the field of management of state property and public procurement. The meeting was initiated by the Committee on Economic Development of the Verkhovna Rada of Ukraine, inviting representatives of state bodies, judges of the Supreme Court, large state-owned companies and market participants, in particular representatives of the Energy Club, to participate.
One of the key issues of the meeting was the application of the provisions of the legislation on public procurement regarding the change in the price per unit of goods within the 10 percent limit, in particular to legal relations that arose before the new version of the law came into force. The participants of the meeting discussed the problems that arise in the implementation of the law, the consequences of different approaches to judicial practice and possible legislative and practical mechanisms for their settlement.
At the invitation of Oleksiy Movchan, Deputy Chairman of the Verkhovna Rada of Ukraine Committee on Economic Development, Oleksandr Kudym, Director of Euro Trade Energy LLC, took part in the meeting on behalf of the Energy Club. In his speech, he focused on the problem of legal uncertainty in the field of public procurement of energy resources, its impact on market participants, and proposed a specific mechanism for the formation of a more unified and predictable approach to law enforcement. In particular, Oleksandr Kudymsaid:
“I would like to raise the issue of legal uncertainty in the field of public procurement of energy resources, which, according to customers and procurement participants, today has two separate manifestations of ambiguous judicial regulation, and offer one practical tool for minimizing it.
The problem of legal uncertainty can be briefly characterized by three fundamental questions:
I propose to look at this problem not statically, but through four consecutive stages of its development.
The first stage is regulatory ambiguity, which existed until January 24, 2024.
The previous version of paragraph 2, part 5, article 41 of Law No. 922-VIII established the possibility of increasing the price per unit of goods by up to 10% in proportion to the increase in the price of such goods on the market.
However, the norm itself did not directly answer the key question: is this 10 percent the maximum cumulative limit of the price increase for the entire term of the contract, or is it a limitation of each individual case of price change.
That is, there was objective regulatory ambiguity and for a long period of time, market participants and customers were guided, in particular, by the clarifications of the Authorized Body in the field of procurement, since the Grand Chamber of the Supreme Court resolved the issue of choosing one of the possible ways of its interpretation.
The second stage is the formation of a new legal standard by the Supreme Court.
On January 24, 2024, in case No. 922/2321/22, the Grand Chamber of the Supreme Court concluded that 10 percent is the maximum cumulative limit for the increase in the price per unit of goods during the entire term of the contract, and on November 21, 2025, in case No. 920/19/24, this approach was confirmed.
However, answering the question of whether this decision was unanimous, it can be confidently stated that in both cases there was a separate opinion of the judges who adhered to the interpretation of the Authorized Body.
It is important that the corresponding conclusion was based not only on a literal reading of the text of the Law, but was also based on a systemic and teleological interpretation, including the purpose of the Law in terms of preventing dumping.
It was this legal standard that later began to be widely used by courts when assessing contracts and additional agreements of previous years.
The third stage is the legislative elimination of ambiguity.
On May 27, 2026, the Verkhovna Rada of Ukraine adopted Law No. 4888-IX.
The legislator directly defined that element of the regulatory structure that previously allowed for different interpretations: it established that the 10 percent limitation applies to each individual case of a price increase without limiting the number of such changes and supported the position of the Authorized Body, which was repeatedly and consistently stated in its explanations.
At the same time, in paragraph 7 of the Final and Transitional Provisions, the legislator directly defined the temporal scope of application of this wording – to legal relations in the field of public procurement,The Supreme Court has already formed legal guidelines, but at the level of practical application of law, an inconsistent qualification of homogeneous legal relations persists.
We separately analyzed the behavior of the electricity procurement market in recent years. The number of winners of electricity procurement procedures decreased from 178 in 2024 to 148 in 2026 – by 17%.
The average number of participants in open tenders decreased from 2.12 to 1.6 – by approximately 25%. In requests for bid prices – from 7.53 to 4.06, i.e. by approximately 46%.
At the same time, the share of the twenty largest winners increased from 65.6 to 75.4%.
Even more indicative is the dynamics of early terminated contracts.
In the first quarter of 2024, 166 electricity supply contracts were terminated, in the corresponding period of 2025 – 308, and in the first quarter of 2026 – already 933 contracts.
And the relevant statistics have been repeatedly confirmed by both the State Enterprise “Professional Procurement” and the largest tender platform in terms of coverage – “Smart Tender”.
That is, a unidirectional change in several independent indicators demonstrates the economic environment in which law enforcement is taking place today, and shows that legal certainty in matters of price changes already directly affects the market behavior of customers and suppliers.
And that is why I would like to conclude my speech not with an assessment of past practice, but with a specific proposal for future law enforcement.
The Law of Ukraine “On the Judiciary and the Status of Judges” provides for a separate instrument, which, in our opinion, directly corresponds to the nature of this problem.
In accordance with paragraph 7 of part 2 of Article 36, the Supreme Court shall provide appellate and local courts with methodological information on law enforcement.
Given the scale, duration and ambiguity of law enforcement, we propose that the Supreme Court consider the possibility, within the framework of this authority, taking into account the already formed legal conclusions of the Supreme Court and the results of the generalization of relevant judicial practice, to provide appellate and local courts with methodological information on the application of paragraphs 2 and 7 of part five of Article 41 of the Law of Ukraine “On Public Procurement”, as well as paragraph 7 of the Final and Transitional Provisions of Law No. 4888-IX.
We propose to form and submit to the courts a single methodological algorithm that will allow relations of the same legal nature to be assessed using the same criteria.
In our opinion, it is this approach that will simultaneously ensure both the independence of the court in resolving each specific case and the consistency and predictability of law enforcement that both courts, customers, and public procurement participants need today to resolve the issue of legal uncertainty.”
For the energy market, legal certainty in public procurement is not only a matter of case law or formal interpretation of individual norms. It is a matter of predictability of business operations, responsibility of customers, fair competition, and willingness of suppliers to participate in procurement. Changing rules and ambiguous approaches to their application create risks for all market participants. Ultimately, this may affect the stability of energy resource supply. Therefore, the development of clear, consistent, and uniform approaches to law enforcement is an important condition for the formation of a civilized and predictable energy market in Ukraine.
