10.08.2026
Energy Club has submitted an appeal to the Head of the Office of the President of Ukraine, Kyrylo Budanov, regarding the possible removal or limitation of the retroactive effect of paragraph 7 of Section XIV of Law of Ukraine No. 4888-IX, which concerns the application of the new wording of the “10% rule” in public procurement.
The appeal was prepared in connection with reports that the Ministry of Economy of Ukraine is drafting a relevant bill pursuant to an instruction of the President of Ukraine.
Energy Club supports the need to verify any legislative decision for compliance with Article 58 of the Constitution of Ukraine and Article 5 of the Civil Code of Ukraine. At the same time, Energy Club emphasises that this issue requires not only internal legal clearance, but an open legal, economic and energy-sector assessment, since the possible changes may directly affect thousands of already existing legal relationships, competition in public procurement, and the stability of the publicly funded segment of the electricity market.
In its appeal, Energy Club notes that Law No. 4888-IX expressly established that the 10% limit applies to each individual instance of a price increase, without any cap on the number of amendments, provided there is a genuine market fluctuation, proportionality, and no increase in the total contract value. Paragraph 7 of the Final and Transitional Provisions extends this wording to legal relationships that have arisen since the date the Law of Ukraine “On Public Procurement” No. 922-VIII entered into force.
Energy Club stresses that this approach does not legalise any and all contract amendments and does not create immunity from liability. The State may still prove the absence of a market fluctuation, the disproportionality of a change, forgery of documents, collusion, actual overpayment, or other independent violations. At the same time, paragraph 7 removes the automatic construction under which a cumulative excess of 10% is in itself deemed sufficient grounds for adverse legal consequences.
Energy Club drew particular attention to the situation in electricity procurement. For this market, a cumulative 10% ceiling objectively fails to reflect actual price volatility. In each of the six periods between 2021 and 2026, the increase in the market price exceeded 10%, with an average of approximately 38.6%.
According to estimates by Energy Club and law firms, at least 3,000 lawsuits have been filed by prosecution authorities against electricity suppliers that worked with the public sector in 2021–2025, and hundreds of criminal proceedings have been opened against officials of contracting authorities and bidders.
The appeal also presents data on the deterioration of the competitive environment in electricity procurement following the spread of the relevant case law. In particular, the number of winning bidders has declined, the average number of participants in open tenders and requests for price offers has decreased, and the share held by the largest winners has grown. In the first quarter of 2026 alone, 933 electricity supply contracts were terminated.
Before any final decision is taken on the future of paragraph 7 of the Final and Transitional Provisions, Energy Club requests that the following be ensured:
Energy Club attached to its appeal a legal justification setting out the constitutional, civil-law and Convention-based grounds for preserving legal certainty on this issue.
