21.04.2026
Author: Oleksandr Pinchuk, Deputy Director for Legal Affairs at Euro Trade Energy LLC
On April 20, 2026, the President of Ukraine signed the Law of Ukraine No. 4834-IX “On Amending Certain Laws of Ukraine Regarding the Implementation of European Law Norms on Energy Market Integration, Increasing Security of Supply and Competitiveness in the Energy Sector” (hereinafter – Law No. 4834-IX).
Law No. 4834-IX is of systemic importance for the further transformation of the energy sector, as its provisions are aimed at implementing European rules for the functioning of the electricity market, creating conditions for an economically justified transition to clean energy, and ensuring safe and affordable electricity supply to consumers.
At the same time, this is not just about the technical adaptation of national legislation to EU law. In parliamentary materials and the position of the specialized committee, this act is considered a framework solution for deepening the integration of the Ukrainian electricity market into the single European market on the basis of reciprocity, including in terms of the regulatory framework for the institute of the active consumer.
This means that the topic of the active consumer is no longer a narrow niche construct for individual market participants. It is being integrated into a large Euro-integration architecture. Such logic fully corresponds to European Union law as well: Directive (EU) 2019/944 specifically identifies active customers as an independent element of the modern electricity market. Accordingly, the institute of the active consumer should already be viewed not as a local exception, but as a systemic element of the new market model.
But in Ukrainian practice, another, much less comfortable conclusion immediately arises. The more actively the state promotes the active consumer model in energy law, the sharper the conflict with public procurement legislation becomes. And it is Law No. 4834-IX that does not resolve this problem, but only highlights it more strongly: energy regulation is already expanding the rights of the active consumer, while procurement law is still built around the old one-way model in which the customer only buys a product, rather than simultaneously buying electricity and selling its surplus to the supplier.
To begin with, it is necessary to clearly distinguish which consumers are being discussed. The Law of Ukraine “On the Electricity Market” distinguishes between a household consumer, a small non-household consumer, and a non-household consumer. A small non-household consumer is a consumer who is not a household consumer and purchases electricity for their own consumption, and whose electrical installations are connected with a contracted capacity of up to 50 kW. A non-household consumer is an individual entrepreneur or a legal entity that purchases electricity not for their own household consumption. In this article, we are interested specifically in the non-household consumer who is simultaneously a customer within the meaning of the Law of Ukraine “On Public Procurement”, i.e., a budgetary institution, communal enterprise, state enterprise, or another public sector entity.
The regulatory basis for the functioning of the active consumer in Ukrainian energy legislation has already been formed, including:
– Article 581 of the Law of Ukraine “On the Electricity Market” defines the legal status of the active consumer and their basic rights;
– Article 96 of the Law of Ukraine “On Alternative Energy Sources” establishes the self-generation mechanism, which covers the sale of exported electricity, hourly netting of the cost of consumption and export, as well as settlements within a special agreement.
At the sub-legislative level, this model is detailed by the NEURC Resolution dated 29.12.2023 No. 2651, which approved the Procedure for the Sale and Accounting of Electricity Produced by Active Consumers and Settlements for It (hereinafter – Procedure No. 2651), as well as the provisions of the Rules of the Retail Electricity Market, approved by NEURC Resolution dated 14.03.2018 No. 312 (hereinafter – RREM), which regulate the relevant contractual and settlement mechanisms.
Thus, the problem does not lie in the absence of legal regulation for the active consumer as such. The problem lies elsewhere: this institute is already regulated by the norms of energy law, but it is still not integrated into the procedures, tools, and contractual structure of public procurement.
For this reason, it is appropriate to analyze the entire range of issues through the prism of two separate scenarios:
Despite the outward similarity, from a legal perspective, these are different types of conflicts. In the first case, the problem arises right at the start, at the level of the procurement construction itself and its compliance with the actual model of consumption and settlements. In the second, the key issue becomes the limits of the permissible transformation of an already concluded agreement and the legality of changing its essential terms due to the customer’s transition to the self-generation model.
Scenario 1. When the customer begins procurement already in the status of an active consumer
At first glance, this is the simplest scenario, because if the customer is already an active consumer, they simply need to describe this in the tender documentation and the draft agreement. Formally, a general tool for this exists in Article 22 of the Law of Ukraine “On Public Procurement,” which stipulates that tender documentation must contain, in particular, evaluation criteria and an evaluation methodology for tender proposals, and may also contain other information that the customer deems necessary to include in accordance with legislation. But this law does not create a special model specifically for the procurement of electricity by an active consumer. It does not contain a separate list of information that must necessarily be disclosed in such a procurement, and it does not establish a special evaluation methodology for a bilateral economic model.
However, for energy law, such a general construction is insufficient, as the self-generation mechanism requires a much higher level of legal and technical certainty. Its proper functioning involves the availability and correct regulation of at least such elements as active consumer status, parameters of the generating unit, commercial metering mode, passport of the distribution or transmission point, capacity permitted for export, hourly netting procedure, formation of a personal account, mechanism for crediting the cost of exported electricity, as well as rules for issuing invoices, acts, and mutual offsets. A significant part of these requirements directly follows from Article 581 of the Law of Ukraine “On the Electricity Market,” Article 96 of the Law of Ukraine “On Alternative Energy Sources,” Procedure No. 2651, RREM, and the Code of Commercial Metering of Electricity. However, the Law of Ukraine “On Public Procurement” does not transform any of these elements into a specifically defined mandatory content of procurement. It is in this that the first systemic gap in legal regulation manifests itself.
A separate issue is the limits of the technical model. For a non-household active consumer, the legislation provides that the capacity permitted for export to the grid, as a general rule, cannot simultaneously exceed 50 percent of the permitted or contracted capacity of its electrical installations, unless specific technical conditions of the system operator are met. This is not a secondary technical detail, but a parameter that directly affects the commercial model of supply and the sale of surplus. Yet, public procurement legislation does not require this parameter to be reflected as a separate essential condition of a special electricity procurement by an active consumer.
Another gap is competitive. The public procurement system is accustomed to evaluating proposals based on price, life-cycle cost, or price combined with other criteria. But for an active consumer, this is no longer enough. Here, two counter-economic values arise: the price of electricity supply to the customer and the price at which that same supplier will purchase the surplus from the customer. Part one of Article 29 of the Law of Ukraine “On Public Procurement” and the general logic of the electronic procurement system do not provide a special mechanism for the simultaneous evaluation of these two indicators within a single procedure. Therefore, even if the customer conscientiously discloses their active status in the documentation, the very architecture of proposal evaluation will remain unadapted to the Net Billing model.
The most sensitive issue in this scenario is the price of selling the surplus electricity. For a non-household consumer who is an active consumer and simultaneously a customer within the meaning of the Law of Ukraine “On Public Procurement,” Article 96 of the Law of Ukraine “On Alternative Energy Sources” does not establish a fixed and pre-determined tariff for the buyout of surplus. The law proceeds from the premise that the sale of exported electricity to the supplier for such a category of consumers is carried out at free prices.
This is exactly where the law enforcement and control risk begins. In public procurement, “free price” cannot mean “any price.” If a clear, market-indicative, and verifiable pricing logic is not embedded in the agreement, space for claims regarding the non-transparent formation of price terms of the procurement arises. A control/law enforcement body may very likely raise the question of whether the supply price was understated with compensation through an overstated buyout price for surplus, or vice versa – whether the customer’s surplus was bought out at an artificially low price in favor of the supplier. That is why for such an agreement, the most protected model appears to be not a manual agreement on a fixed figure, but a formulaic model tied to an objective market indicator, primarily the hourly “day-ahead” market price, with a transparent description of all adjusting elements.
The conclusion for the first block is harsh but honest. When a customer already begins procurement in the status of an active consumer, the problem is not limited only to the price of selling surplus. Special information that must be reflected in the procurement, technical model parameters, documentation rules, proposal evaluation methodology, and the logic of bilateral settlements are also not regulated here. That is, even in the “cleanest” scenario, procurement legislation does not provide a ready-made working model; it only allows the customer to construct it themselves from fragments of energy and procurement law, and for the public sector, this always means increased regulatory risk.
Scenario 2. When the customer transitions to the active consumer model after concluding the agreement
The second scenario is significantly more dangerous. Here, the problem is no longer how to correctly design the procurement, but whether an already signed electricity supply agreement, concluded based on procurement results, can be rebuilt for Net Billing. From the perspective of energy law, such a possibility seemingly exists. Clause 11.4.3 of the RREM directly provides that a contract for the purchase and sale of electricity under the self-generation mechanism is concluded either simultaneously with the supply agreement or by amending the existing agreement regarding the transition to a commercial proposal under the self-generation mechanism. Procedure No. 2651 additionally proceeds from the premise that such an agreement is an annex to the supply agreement.
However, for a customer within the meaning of the Law of Ukraine “On Public Procurement,” this is not enough. Part five of Article 41 of this Law establishes a general rule: the essential terms of a procurement agreement cannot be changed after its signing, except in cases directly determined by the Law. A similar logic for the period of martial law is duplicated by clause 19 of the Peculiarities of Public Procurement of Goods, Works, and Services for Customers Provided for by the Law of Ukraine “On Public Procurement,” for the period of martial law in Ukraine and within 90 days from the date of its termination or cancellation, approved by the Resolution of the Cabinet of Ministers of Ukraine dated October 12, 2022, No. 1178. These norms do not contain a special ground for transforming a regular electricity supply agreement into an active consumer model with Net Billing.
And this is not a formality. Transitioning to self-generation is not a minor technical clarification. After such a transition, the financial architecture of the agreement itself changes. A separate purchase and sale agreement appears as an annex to the supply agreement, along with a different commercial proposal, hourly netting, crediting the cost of exported electricity to the active consumer’s personal account, and in some cases – a counter monetary obligation of the supplier to the consumer. That is, during the execution of the agreement, the parties actually add a second economic circuit that was not a subject of competition at the procurement stage.
Imagine that we simply signed an annex – this argument is weak in this situation. In public procurement, it is not the name of the document that is decisive, but whether it changes the economic balance of the obligation with which participants entered the competitive procedure. If after the change, another price, another payment flow, a new acceptance procedure, a new offset procedure, and essentially a new settlement regime appear, then this is no longer about cosmetic adjustment, but about a qualitative change in the essential terms of the agreement. And current procurement legislation does not provide a directly permitted ground for such a change.
Moreover, the current procurement infrastructure is not adapted to this model even at the level of agreement completion. Article 42 of the Law of Ukraine “On Public Procurement” is built around the classical logic of the report on the execution of the agreement: price in the agreement, quantity of goods, payment amount, term of execution. For a regular supply agreement, this is sufficient. But for the active consumer model, this is already too little, because alongside the supply price, the surplus buyout price appears, and alongside the customer’s payment to the supplier – a potential counter-obligation of the supplier to the customer. Consequently, the conflict here is no longer just in part five of Article 41 of the Law, but in the fact that the entire procurement construction is designed for a one-way purchase, rather than as a combination of procurement with elements of reverse sale.
Against this background, Law No. 4834-IX adds a new, very strong emphasis. The norms of this Law speak about the development of the active consumer, aggregation, flexibility, and energy communities as part of the integration into the EU internal market. But in these same norms, there are no signs that a special model for the customer-active consumer has simultaneously been created in the Law of Ukraine “On Public Procurement.” Thus, the state is already accelerating in the energy part of the system, but in the procurement part, it has not yet provided a legal bridge for implementing this policy in the budgetary sector. This is not just a gap; it is already a systemic desynchronization of two regulatory arrays.
There is another important aspect. The European logic for the development of the electricity market is moving not toward simplified administrative netting at any convenient price, but toward more market-based active consumer models. This is evident from Directive (EU) 2019/944 and the general logic of integration into the EU internal energy market. For Ukrainian practice, this means a simple thing: the issue of the surplus sale price must be considered not as a technical annex to the agreement, but as a full-fledged element of the market model, which must be transparent, formulaic, and legally embedded in the procurement procedure from the very beginning.
The conclusion for the second scenario is even more categorical than for the first. If a customer wants to transition to the active consumer model during the execution of an electricity procurement agreement, the current regulatory framework does not provide a legally secure mechanism for this. Energy law allows such a transformation, but procurement law does not provide a direct ground for changing essential terms and does not adapt the procedure, reporting, or economic logic of the agreement to this model. Therefore, this problem cannot be solved by a single letter, clarification, or a carefully drafted supplementary agreement. Systemic changes to legislation, including the Law of Ukraine “On Public Procurement,” are needed here rather than cosmetic ones.
General Conclusions
Today, Ukrainian energy legislation has long gone beyond the notion of the consumer as exclusively a passive buyer of electricity. It views them as a full-fledged market participant who can consume, produce, store electricity, sell its surplus, and participate in flexibility mechanisms. After Law No. 4834-IX enters into force, this vector only strengthens, but legislation in the field of public procurement retains the traditional model of the customer as a party that exclusively acquires a product, work, or service. Until these two logics are merged into one regulatory construction, the customer-active consumer and their supplier will remain in a zone of legal uncertainty.
From this follows a package of changes without which the market will continue to stall. The Law of Ukraine “On Public Procurement” must directly allow a bilateral model for electricity procurement, in which the procurement agreement can contain an element of surplus sale under the self-generation mechanism. And, of course, a direct legal ground is needed for making changes to an already concluded agreement if the customer acquires active consumer status during its execution.
The final conclusion is simple. Law No. 4834-IX should be considered not as proof that the problem has already been solved, but as proof that it has become even larger in scale. The state is accelerating the implementation of the European energy market model, strengthening the institute of the active consumer, and moving toward a more complex, more market-oriented, and more technological architecture. But until the Law of Ukraine “On Public Procurement” learns to work with the active consumer as a full-fledged bilateral model, the budgetary sector will continue to have a choice between two bad scenarios: either to postpone generation projects or to implement them through legally vulnerable constructions. And this is no longer a problem of an individual agreement, but of the quality of state regulatory synchronization.
