03.06.2025
Energy Club, the largest business association of energy companies in Ukraine, has received an official response from the Prosecutor General’s Office to its appeal regarding the current situation in the electricity market, caused by judicial practice and the actions of law enforcement agencies. Energy Club’s appeal was formulated after two high-level online meetings concerning the Supreme Court’s decision restricting price changes in public procurement contracts.
As a reminder, on May 20, 2025, Energy Club appealed to Vitaliy Urkevych, Secretary of the Grand Chamber of the Supreme Court, and Oleksiy Khomenko, First Deputy Prosecutor General. The appeals expressed deep concern about the legal position of the Grand Chamber of the Supreme Court, outlined in its resolution of January 24, 2024 (case № 922/2321/22) and supported by a subsequent Supreme Court resolution of August 28, 2024 (case № 918/694/23). This interpretation limits any change in the price of a public procurement contract, including for electricity, to a maximum of 10% of the initial contract price for its entire duration. Energy Club argues that this limitation ignores the objective and significant price volatility in the electricity market, which has often exceeded 10% annually and is further exacerbated by wartime conditions.
In its response dated June 8, 2025, № 09/1/1-785-виx-25, the Prosecutor General’s Office stated that Energy Club’s appeal had been reviewed. The letter notes that the Grand Chamber of the Supreme Court, in its resolution of January 24, 2024, in case № 922/2321/22, formulated a conclusion regarding the application of paragraph 2 of part five of Article 41 of the Law “On Public Procurement”. According to this conclusion, essential terms of a procurement contract cannot be changed after its signing until the obligations are fully performed by the parties, except for cases where the price per unit of goods increases by up to 10% proportionally to the price increase of such goods on the market due to price fluctuations, provided that such a change does not lead to an increase in the total amount specified in the procurement contract. Thus, the total increase in the price of goods should not exceed 10% of the price that was determined by the parties when concluding the contract based on the procurement procedure results.
The Prosecutor General’s Office also emphasized that conclusions regarding the application of legal norms, as set out in the Supreme Court’s rulings, are binding for all subjects of authority that apply the relevant regulatory legal act in their activities, and are taken into account by other courts when applying such norms. The response states that justice in commercial courts is administered on the principles of equality and adversarial proceedings, and each party must prove the circumstances that are relevant to the case and on which it relies as the basis of its claims or objections. The court evaluates evidence based on its internal conviction, which is founded on a comprehensive, complete, objective, and direct examination of the evidence available in the case. Therefore, in each specific case, the court will assess the prosecutor’s arguments.
Crucially, the Prosecutor General’s Office stated that the information contained in Energy Club’s appeal has been noted and will be taken into account during the further exercise of powers by the relevant structural divisions of the Prosecutor General’s Office.
Energy Club had stated that the current law enforcement practice, based on a legal interpretation detached from economic realities, is precipitating an “existential crisis” in the energy market, jeopardizing the reliability of electricity supply and eroding trust in state institutions. The organization expresses hope for understanding and constructive dialogue to resolve this critical situation and ensure the stability of Ukraine’s energy sector.
