08.06.2026
For electricity suppliers working with the public sector, the 10 percent price adjustment threshold under item 2 of part five of Article 41 of the Law of Ukraine “On Public Procurement” has long ceased to be a purely legal norm. In practice, it has turned into one of the main lines of conflict between the market nature of electricity and the formalized logic of public procurement.
A typical scenario looks identical. A supplier won an electricity procurement tender, concluded a contract with the customer, started supply, a market price increase occurred during the contract execution period, the parties signed supplementary agreements or applied the price adjustment mechanism provided for by the contract, after which law enforcement agencies or the prosecutor’s office filed a lawsuit to declare the supplementary agreements invalid and recover funds.
Therefore, suppliers should not limit themselves to passive defense in disputes where the entire emphasis is reduced to a formal allegation of exceeding 10%. Currently, defense needs to be built systematically, moving simultaneously in the following interconnected directions:
One of the key arguments that electricity suppliers should use in court disputes regarding supplementary agreements is Draft Law No. 11520 “On Public Procurement,” adopted by the Verkhovna Rada of Ukraine on May 27, 2026, and sent to the President of Ukraine for signature.
This is not about a formal reference to the fact that the state “changed the Law,” and therefore all previous supplementary agreements must automatically be recognized as lawful. Such a position would be overly simplistic. The true power of Draft Law No. 11520 lies elsewhere: the legislator has effectively dotted the “i’s” and crossed the “t’s” on an issue around which an overly formalized judicial practice had been shaping for a long time.
The latest decision of the Grand Chamber of the Supreme Court in disputes regarding the 10% limitation was based on the premise that legislative changes in the field of public procurement were allegedly not aimed at expanding the 10% threshold regardless of the total number of amendments to the contract. In other words, the court acknowledged the very fact of regulatory evolution but failed to see the main point in it: a consistent movement precisely towards a model under which the limitation applies to each individual price adjustment per unit of goods.
Draft Law No. 11520 vividly demonstrates the fallacy of such logic. In the new legislative structure, an approach is explicitly enshrined under which the price adjustment applies to each individual such change. This is not an accidental editorial detail or a technical clarification. This is the legislator’s response to the legal uncertainty that was artificially created around item 2 of part five of Article 41 of the Law of Ukraine “On Public Procurement,” and which for years was used to reduce the entire economics of electricity supply contracts to a single arithmetic formula: “more than 10% = violation.”
That is why Draft Law No. 11520 opens an historic path for the market to formulate the question of reviewing the legal position of the Grand Chamber of the Supreme Court. Indeed, throughout the history of its practice, the Grand Chamber very rarely returns to reviewing already established conclusions, and a third return to the exact same issue is virtually unprecedented. However, in this situation, such a review becomes not just desirable, but objectively inevitable, as the new version of the law demonstrates that the previous interpretation did not correspond to the true logic of legislative development.
At the same time, the mere fact of the adoption of Draft Law No. 11520 will not ensure an automatic review of judicial practice. To achieve this, market participants need to qualitatively reconstruct the consistent framework of all amendments introduced to public procurement legislation, demonstrate their internal logic, compare the versions of the Law, the Particulars No. 1178, and the new legislative regulation, as well as prepare relevant procedural motions in cases currently under consideration by courts of cassation.
It is precisely this line of argumentation that allows raising before the Supreme Court the question not of the “retrospective application of the new law,” but of correcting the erroneous interpretation of the previous norm, taking into account its legislative evolution, the purpose of regulation, the economic nature of the electricity market, and the principle of legal certainty.
To form a coordinated market position, market participants may contact representatives of LLC “Euro Trade Energy” (Oleksandr Kudym, tel.: 068 894 58 78), as this company’s representative from Energy Club participated in the working group on processing Draft Law No. 11520 and was directly involved in shaping the corresponding legislative logic. Such coordination is important not only for an individual case but also for the entire market, since each qualitatively prepared cassation proceeding can become a step towards reviewing the flawed judicial framework that currently affects dozens of suppliers.
A supplier may file a motion with the court to stay proceedings in a case until the Constitutional Court of Ukraine completes its consideration of case No. 3-78/2026(178/26) based on the constitutional complaint of LLC “Ukr Gaz Resource” regarding the constitutionality of item 2 of part five of Article 41 of the Law of Ukraine “On Public Procurement.”
As of April 30, 2026, the official website of the Constitutional Court of Ukraine recorded the receipt of constitutional complaints from LLC “UKR GAZ RESOURCE” regarding the compliance of item 2 of part five of Article 41 of Law No. 922-VIII with the Constitution of Ukraine and their assignment to a judge-rapporteur. Subsequently, on May 06, 2026, the First Panel of Judges of the Second Senate of the Constitutional Court of Ukraine opened constitutional proceedings in case No. 3-78/2026(178/26).
The procedural ground for such a motion is item 5 of part one of Article 227 of the Economic Procedural Code of Ukraine. The court is obliged to stay proceedings in the event of an objective impossibility of considering the case prior to the resolution of another case, particularly in the order of constitutional proceedings.
For practical use by market participants, a template for the relevant motion has already been developed within the professional discussion of Energy Club participants. Suppliers can use this template as a base model, adapting it to the factual circumstances of their case, the proceedings number, the substance of the claims, and the stage of judicial review. At the same time, this does not preclude the possibility of preparing their own motion with independent argumentation if a company wishes to strengthen its position with additional evidence, financial calculations, references to specific supplementary agreements, judicial practice, or the specifics of electricity supply to a particular customer.
Suppliers should also bear in mind that a motion to stay proceedings does not substitute a defense on the merits. It must work alongside statements of defense against the lawsuit, evidence of market price fluctuations, an analysis of the economic nature of the electricity supply contract, arguments regarding legal certainty, and references to legislative evolution, particularly Draft Law No. 11520.
Therefore, the motion template can be provided to market participants upon an individual request to representatives of Energy Club (contact details), LLC “Euro Trade Energy” (Oleksandr Kudym, tel.: 068 894 58 78), or LLC “UKR GAZ RESOURCE” (Olesia Serebrynyk, tel.: 067 238 86 65). This approach allows not just handing over the text of the document, but helping the supplier properly integrate it into their own procedural strategy, avoid a formal submission, and strengthen the argumentation taking into account the circumstances of the specific case.
A distinct strategic direction for suppliers is to support the constitutional proceedings in case No. 3-78/2026(178/26), opened upon the constitutional complaint of LLC “UKR GAZ RESOURCE” regarding the constitutionality of item 2 of part five of Article 41 of the Law of Ukraine “On Public Procurement.”
If a supplier already has a final court decision in which item 2 of part five of Article 41 of Law No. 922-VIII was applied, they may consider filing their own constitutional complaint. In the event that the Constitutional Court of Ukraine receives several complaints relating to the same or an interconnected issue, the Court has a procedural opportunity to consolidate such cases into a single constitutional proceeding.
If a final court decision is not yet available, a supplier or a group of suppliers can support the consideration of the case by submitting a written reasoned legal opinion. Such a document does not make the company a party to the constitutional proceedings, but it allows conveying the sector-specific market position, the economic consequences of the formal application of the 10 percent limitation, the specifics of electricity as a commodity, etc., to the Constitutional Court of Ukraine.
To receive consultations regarding the preparation of relevant procedural documents, assessment of the prospects for filing one’s own constitutional complaint, or forming a written legal position for the Constitutional Court of Ukraine, suppliers may contact the authorized person of the subject of the right to a constitutional petition of LLC “Ukr Gaz Resource” in the CCU (Olesia Serebrynyk, tel.: 067 238 86 65).
Separately, suppliers should analyze not only the amount of the price increase but also in whose interests the prosecutor filed the lawsuit and from which funds the consumer actually paid for the electricity. If the lawsuit is filed in the interests of a communal enterprise, a communal non-profit enterprise, or another business entity that paid for electricity with its own funds rather than state or local budget funds, then the dispute cannot be automatically reduced to the thesis of “protecting budget funds.” In such cases, questions regarding the existence of a violated state interest, the appropriateness of the method of protection chosen by the prosecutor, and the very right of the prosecutor to represent the interests of the state acquire special significance.
It is precisely for this category of disputes that suppliers can use another procedural tool – a motion to stay proceedings until the Supreme Court completes its review of case No. 922/2848/24. Specifically, on March 17, 2026, a panel of judges of the Cassation Economic Court within the Supreme Court referred this case to the judicial chamber for the consideration of cases concerning land relations and property rights of the Cassation Economic Court. This case is important for the market because it concerns the refinement of approaches to the existence of grounds for a prosecutor to file lawsuits to declare supplementary agreements in the field of public procurement invalid and recover funds in the interests of the state.
The procedural ground for such a motion is item 7 of part one of Article 228 of the Economic Procedural Code of Ukraine. This norm grants the court the right to stay proceedings in a case if, in another case involving similar legal relations, a judicial decision is being reviewed in cassation by a chamber, a unified chamber, or the Grand Chamber of the Supreme Court. Accordingly, if in a specific case the prosecutor’s office sues in the interests of an enterprise that did not spend budget funds to pay for electricity, the supplier can argue that the outcome of the review of case No. 922/2848/24 will directly affect the assessment of the prosecutor’s procedural legitimation and the presence of the very “state interest” that the prosecutor’s office claims as the basis of the lawsuit.
In practice, this means that alongside objections on the merits, the supplier must bring forward documents confirming the source of payment: the contract, payment orders, the enterprise’s financial plan, the charter, certificates regarding own revenues, the absence of budget allocations for the respective payments, or other evidence that the funds were not budgetary. If this is not done, the court may, by inertia, perceive any lawsuit by a prosecutor as a lawsuit to protect the budget, even though the actual economics of the specific dispute may be completely different.
The practical algorithm for suppliers in the event that the chamber of the CEC SC states: the source of funds matters, is provided separately (Appendix 1).
Another line of action is to support the administrative challenge of the regulatory uncertainty that has arisen around Resolution of the Cabinet of Ministers of Ukraine No. 1178 and its correlation with Article 41 of the Law of Ukraine “On Public Procurement.” The prepared draft lawsuit against the Cabinet of Ministers of Ukraine is already structured as a dispute to declare a regulatory legal act unlawful and invalid and proceeds from the premise that items 17 and 19 of the Particulars created a situation of legal uncertainty for electricity suppliers.
The essence of this line of defense is that suppliers, acting during martial law, in good faith relied on the special regulation of Resolution No. 1178. They assumed that the procedure for amending the material terms of a procurement contract is determined precisely by the Particulars, and not by the general framework of part five of Article 41 of the Law. At the same time, in subsequent economic disputes, the prosecutor’s office and customers virtually ignore this special regulation and return the discussion to the “more than 10%” formula, which creates a retrospective risk for suppliers who acted in accordance with the effective governmental act.
If the relevant administrative lawsuit has not yet been filed, suppliers can join it as co-plaintiffs by providing their registration data, information on the availability of an electronic account, evidence of participation in procurements, contracts, supplementary agreements, materials of prosecutorial lawsuits, or other documents confirming that the legal uncertainty of Resolution No. 1178 directly affects their rights and legitimate interests. If the lawsuit has already been filed, the procedural model depends on the stage of the case: it is possible to file a separate administrative lawsuit with a motion to consolidate cases, declare entry into the case as a third party without independent claims on the side of the plaintiffs, or use the materials of such a lawsuit as an analytical basis for one’s own procedural position.
This direction does not replace the defense in a specific economic case, a motion to stay proceedings, or support for constitutional proceedings. Its function is different – to break the regulatory construct itself that gave rise to inconsistent law enforcement. For the market, this is important because an individual supplier in their own case defends against a specific lawsuit, whereas the administrative challenge of Resolution No. 1178 allows raising a broader question before the court: can the state first create a special price adjustment mechanism during martial law, and then, through the prosecutor’s office, effectively punish suppliers for the good-faith application of this mechanism.
To receive consultations regarding joining the relevant administrative lawsuit, preparing one’s own lawsuit, forming an evidential base, or determining the optimal procedural status, suppliers may contact LLC “ENERGO RESOURCE RI GROUP” (tel.: 8 099 701 11 06 – Alina).
CONCLUSION: the strongest strategy for a supplier is not to choose one of the options, but to combine them.
The formula for the market is simple: defend on the merits, demand a stay where it is procedurally justified, and support constitutional proceedings with qualitative sector-specific analytics. If suppliers do not explain the specifics of electricity to the judicial system, prosecutors will explain it for them through a single arithmetic operation: “more than 10%.”
Separately, Energy Club initiates the opening of a fundraising campaign to support active market participants who today actually bear the main financial and organizational burden of the systemic defense of electricity suppliers.
This is not about funding an individual company or an individual court case. It is about supporting work whose results benefit the entire market: the preparation of legal positions, legal support of cases in courts of various instances, work on constitutional proceedings, daily free counseling of suppliers on strengthening their judicial position, participation of market representatives in professional discussions, communication with public authorities, journalists, and the expert community.
Today, effectively a few companies take upon themselves a disproportionately large volume of expenses, time, and responsibility. They pay for legal work, organize analytical support, prepare procedural documents, maintain communication with other market participants, and formulate arguments that are subsequently used not only in their own cases but also in the cases of many other suppliers.
Such a situation is understandable at the launch stage of joint defense, but it cannot remain a sustainable model. If the problem is market-wide, then the support for its resolution must also be market-wide. Each contribution is not charity in a narrow sense, but participation in the formation of a shared legal infrastructure for the protection of the industry.
Energy Club invites market participants to join this fundraiser as a tool of solidarity support for those companies that are already investing significant resources today into cases whose outcome may matter for all electricity suppliers. The broader this support is, the stronger the shared position of the market will be in courts, the Constitutional Court of Ukraine, public communication, and dialogue with the state.
In a situation where the prosecutor’s office and law enforcement agencies attempt to explain the complex electricity market through a single arithmetic operation “more than 10%”, the market must respond not with emotions, but with qualitative legal, economic, and constitutional argumentation. This is exactly why the joint organizational and financial participation of everyone interested in a fair and professional solution to this problem is needed.
Those wishing to support the initiative group are requested to contact the contact person from Energy Club, Svitlana Ryabko (info@iclub.energy).
It is necessary to establish not generally, but documentarily, what specific funds went to pay for the disputed supplementary agreements: local or state budget funds; the enterprise’s own revenues. For this purpose, payment orders and bank statements are collected, accounts from which expenditures were made are analyzed, and the financial plan and the annual procurement plan are examined. It is precisely this financial “decryption” that will become the foundation of the entire subsequent procedural position.
After classifying the funds, one must answer: whose specific interest has been affected – that of the state or the territorial community in the person of the management body, or of an individual enterprise as a party to the contract. If the overpayment was made at the expense of a budget program, the natural bearer of the public interest will not be abstractly the “owner of the enterprise,” but the body responsible for supervising the targeted and efficient use of precisely these funds. If, however, the payment was made from the enterprise’s operating revenues, the question arises whether the enterprise itself should act as the plaintiff.
Following the CCU decision, the prosecutorial model of “I substitute for the authority because it fails to act or acts improperly” has become constitutionally vulnerable. Therefore, the defendant needs to raise the questions: did the prosecutor approach the authority; did the authority refuse to file a lawsuit; did the authority have the legal and factual capacity to act on its own; was there an objective justification as to why exactly the prosecutor should lead the process. For the prosecutor, conversely, this block will need to be proven more thoroughly than before.
It is advisable for defendants already at the start of the dispute or at the cassation stage to raise a complex of arguments: the absence of a proper subject, the lack of proof regarding the public status of the funds, the absence of grounds for representation by a prosecutor, the mismatch of the chosen plaintiff with the character of the disputed legal relations, and references to CCU Decision No. 6-r(II)/2025 and the resolution of the chamber of the CEC SC. If the case has not yet been considered, it is worth simultaneously raising the question of a stay pending the completion of the review of a similar case by the chamber or until its conclusion is taken into account.
