13.08.2026
Energy Club has submitted an appeal to the Verkhovna Rada Committee on Anti-Corruption Policy and the Verkhovna Rada Committee on Economic Development regarding the need to prevent the selective application of price adjustment rules in public procurement of electricity.
In its appeal, Energy Club emphasises that the issue surrounding the so-called “10% rule” in public electricity procurement has already moved beyond individual commercial disputes. What is at stake is a systemic risk in which identical price adjustment mechanisms may receive different legal assessments depending on the contracting authority, the supplier, the supervisory body, or the timing of the case.
Energy Club’s key request is that, pending the introduction and consideration of the relevant draft law, the mechanical removal of paragraph 7 of Section XIV of Law of Ukraine No. 4888-IX should not be supported without documented justification, anti-corruption assessment, comparison with the Ministry of Economy’s long-standing clarifications, and without an alternative safeguard against selective enforcement.
Energy Club points out that Law No. 4888-IX clarified paragraph 2 of part five of Article 41 of the Law of Ukraine “On Public Procurement” and defined the temporal effect of the new wording with respect to procurement relations that arose from the date Law No. 922-VIII entered into force.
At the same time, the Ministry of Economy has drafted a proposal to remove precisely paragraph 7 of Section XIV of Law No. 4888-IX. In Energy Club’s view, simply deleting this provision without simultaneously regulating the consequences for relations already established, for pending cases and for enforcement criteria may create a new level of legal uncertainty.
The appeal underlines that the Ministry of Economy’s long-standing clarifications have established a predictable model of conduct for contracting authorities and suppliers. These clarifications proceeded from the premise that a price change in itself does not constitute a violation provided there is a contractual basis, a genuine market fluctuation, proper documentary evidence, proportionality of each step, and no increase in the total contract value.
Energy Club stresses that even the most recent consultations issued by the Ministry of Economy confirmed the step-by-step adjustment model, under which the 10% cap applies to each individual increase with no limit on the number of amendments, while the 90-day interval does not apply to electricity.
The Club believes that if state policy has changed and the previous approach is now considered erroneous, such a change must be explained openly: by identifying the moment the approach changed, the transitional consequences, and the protections for those who acted in good faith on the basis of official clarifications.
Energy Club separately emphasises that paragraph 7 of Law No. 4888-IX is not, and must not be interpreted as, an “amnesty” for any and all supplementary agreements. It does not remove the requirements of a genuine market fluctuation, proportionality, proper documentary evidence, no increase in the total contract value, good faith of the parties, and the absence of forgery, collusion or artificial circumvention of the procedure.
The dispute, in Energy Club’s view, concerns a narrow question: whether a cumulative excess above 10% can in itself automatically render all successive amendments unlawful regardless of other factual circumstances.
Energy Club also notes that the mechanical removal of paragraph 7 without a replacement rule does not restore predictability. On the contrary, it leaves unresolved the consequences of the legislative change already adopted, of divergent judicial approaches, official consultations and pending proceedings. This creates room for the same facts to be interpreted in different ways.
In its appeal, Energy Club proposes an operational alternative to the mechanical removal of paragraph 7. Its essence is that a cumulative excess above 10% of the initial price should not in itself automatically determine whether supplementary agreements are lawful or unlawful. Each amendment must be examined separately, while collusion, forgery, false documents, the artificial creation of grounds and circumvention of the procedure must remain independent grounds for liability.
The model proposed by Energy Club is not an “amnesty”. It removes only the automatic conclusion drawn from a cumulative excess above 10%, while preserving the mandatory conditions for each amendment, anti-circumvention safeguards, the allocation of the burden of proof, a rule for pending cases, and the principle of finality of court decisions.
Energy Club asks the Verkhovna Rada committees to take the appeal under consideration and to place the issue of legal certainty and the risk of selective application of price adjustment rules in electricity procurement on the agenda of an open committee session, a working group or a round table.
The Club also requests that the Office of the President of Ukraine, the Cabinet of Ministers of Ukraine and the Ministry of Economy provide the full set of documents concerning the preparation of the draft law on the removal of paragraph 7; that a parliamentary anti-corruption assessment be carried out once the draft law is registered; and that corruption risk factors be assessed separately: broad administrative and law enforcement discretion, retrospective unpredictability, unequal criteria for public and private entities, and the absence of a unified methodology for calculating damages.
Energy Club further proposes involving in this work the NACP, the State Audit Service, the Prosecutor General’s Office, the SBI, NABU, the Ministry of Economy, the relevant Verkhovna Rada committees, representatives of contracting authorities, suppliers, sectoral associations, academics and the public.
Based on the results of such an analysis, Energy Club proposes recommending a single interagency test for assessing price changes. Such a test should take into account the contractual basis, genuine market movement, the reliability of the source of evidence, comparable dates, proportionality, the cap on each individual amendment, no increase in the contract value, the absence of collusion, forgery and circumvention of the procedure, as well as equal application to all entities.
“We ask that this appeal be considered not as a request to establish the lawfulness of specific contracts, but as a proposal to eliminate the conditions that enable selective application of the law. Equality before the law requires that one and the same test be applied to procurement by state bodies, other contracting authorities and private suppliers, and that a change in state policy does not turn into a retrospective trap for market participants,” the Energy Club appeal states.
