13.08.2026
Energy Club has submitted an appeal to the National Agency on Corruption Prevention regarding a systemic enforcement problem in the field of public procurement of energy resources.
In its appeal, the Club emphasises that the prolonged legal uncertainty surrounding the so-called “10% rule” on increasing the price per unit of goods in public procurement contracts, its retrospective application to legal relations of previous years, the absence of unified criteria for law enforcement response, and the selectivity of such response have together created an environment of heightened corruption risk.
At issue is a situation in which the very same economic conduct by contracting authorities and suppliers — conduct that at the time the contracts were concluded and performed was perceived by the market as permissible and was based on the then-prevailing understanding of the legislation and on the clarifications of authorised bodies — began several years later to be assessed by the state against a different legal standard.
The problem has become particularly acute in electricity procurement, where the market price is objectively volatile. According to estimates by Energy Club and by law firms advising participants in the energy market, at least 3,000 lawsuits have been filed by prosecution authorities against electricity suppliers that worked with the public sector in 2021–2025 alone, while hundreds of criminal proceedings have been opened against officials of contracting authorities and procurement participants.
Energy Club points out that the greatest problem lies not only in the scale of such enforcement, but also in its selectivity. In 2021–2023, price adjustment mechanisms were used by thousands of contracting authorities and suppliers in tens of thousands of contracts. At the same time, there are no public, comprehensible and universal criteria determining which supplier faces a lawsuit, which contracting authority becomes the subject of criminal proceedings, which officials become the target of investigative actions, and which comparable contracts receive no negative legal assessment at all.
In Energy Club’s view, it is precisely this combination of legal uncertainty, broad discretion of state bodies, absence of transparent criteria and selective application of adverse consequences that creates a classic environment of heightened corruption risk.
The Club also stresses that law enforcement risk is already affecting the economic behaviour of the market. Electricity procurement statistics for 2024–2026 show deteriorating competition: a decline in the number of winning bidders in procurement procedures, a decrease in the average number of participants in tenders, growing market concentration, and an increase in the number of contracts terminated early.
Energy Club pays particular attention to Law of Ukraine No. 4888-IX, by which the Verkhovna Rada of Ukraine clarified the substance of the “10% rule”. Parliament expressly established that the restriction on increasing the price per unit of goods by no more than 10% applies to each individual instance of a price increase, with no limit on the number of such amendments, provided that the other requirements set out by law are met.
At the same time, Energy Club underlines that this provision does not mean that every supplementary agreement is automatically deemed lawful, nor does it create immunity from liability. The state retains the ability to prove the absence of a genuine market fluctuation, the disproportionality of a price increase, the falsification of documents, collusion, price inflation, misappropriation of budget funds, abuse of office or other independent offences.
What the provision does remove is the automatic construction under which a cumulative excess above 10%, without examination of any other circumstances, becomes grounds for concluding that the parties’ conduct was unlawful.
Energy Club warns that the possible mechanical removal of paragraph 7 of the Final and Transitional Provisions of Law No. 4888-IX, without a comprehensive settlement of the consequences of the preceding crisis, may fail to restore legal certainty and instead create a new level of uncertainty.
In that event, one and the same set of legal relations would be governed simultaneously by the previous text of the Law “On Public Procurement”, the clarifications of the authorised body, the legal positions of the Supreme Court, Law No. 4888-IX, and the potential subsequent removal of the very provision that defined the temporal limits of its application. This could substantially widen the scope for individual interpretation in the courts, the prosecution service, and pre-trial investigation and supervisory bodies.
Energy Club asks the NACP to conduct a strategic analysis of the corruption risks that have taken shape in public procurement of energy resources as a result of legal uncertainty regarding price adjustment mechanisms in contracts of previous years.
The Club also asks the NACP, should a draft regulatory act on removing or narrowing the effect of paragraph 7 of the Final and Transitional Provisions of Law No. 4888-IX be submitted to the Verkhovna Rada of Ukraine, to consider carrying out an anti-corruption assessment of it.
Energy Club separately proposes considering the development of interagency recommendations aimed at establishing unified, transparent and predictable criteria for assessing legal relations that arose before the relevant case law took shape.
“The fundamental anti-corruption safeguard in this situation must be the following principle: identical factual and legal circumstances must receive an identical legal assessment, regardless of the particular contracting authority, supplier, region or body carrying out the enforcement in question,” the Energy Club appeal states.
Energy Club is ready to provide the NACP with the statistics it holds on court disputes, materials on criminal proceedings, an analysis of electricity procurement for 2024–2026, statistics on market concentration, the number of participants, procedures that received no bids and contracts terminated early, as well as examples of inconsistent judicial and law enforcement approaches to comparable legal relations.
The Club emphasises that for public procurement — through which significant volumes of public funds are redistributed each year — this is not merely a question of the rule of law. It is also a question of the state’s anti-corruption policy.
Energy Club believes that eliminating legal uncertainty, minimising uncontrolled discretion and establishing the same rules for all market participants are no less important as tools for preventing corruption than responding to corruption offences already committed.
