08.04.2026
Author: Oleksandr Kudym – Director of Euro Trade Energy LLC
Between 2024 and 2026, judicial practice in the field of public procurement underwent significant changes that are already impacting the assessment of the legality of parties’ actions in previously concluded contracts. This primarily concerns the approach to defining the limits of price changes per unit of goods, formulated by the Grand Chamber of the Supreme Court only in 2024, but effectively applied to legal relations from 2021–2023.
Such practice creates not only applied legal risks for suppliers and customers but also raises a much broader question: the limits of permissible judicial interpretation over time and its consistency with the constitutional principles of legal certainty and the non-retroactivity of law.
Therefore, let’s discuss the constitutional dimension of the impermissibility of the retrospective application of the Grand Chamber of the Supreme Court’s (GC SC) conclusion in disputes regarding supplementary agreements from 2021–2023. Does the retrospective application of the Supreme Court’s new legal positions align with the basic standards of fairness and predictability of legal regulation?
A particular significance in disputes regarding the validity of supplementary agreements concluded in 2021–2023 based on Clause 2, Part 5, Article 41 of the Law of Ukraine “On Public Procurement” is acquired by the constitutional aspect of the retrospective application of the GC SC’s conclusion, formulated only on January 24, 2024, in case No. 922/2321/22. According to this conclusion, the price per unit of goods cannot be increased by more than 10% of the original contract price, regardless of the number and timing of such changes.
Applying this conclusion as a universal criterion for assessing the lawfulness of parties’ conduct in legal relations that arose and were implemented long before its formation raises questions about the consistency of such practice with the principles of the rule of law, legal certainty, and predictability of law enforcement enshrined in Article 8 of the Constitution of Ukraine, as well as the requirements of Article 58 regarding the impermissibility of the retroactive effect of legal regulation. The Constitutional Court of Ukraine, in its established practice, explicitly states that the regulatory instrument in force at the time an event, fact, or legal relationship occurred must be applied to it.
Essentially, we are dealing with a situation where a new, more stringent and burdensome judicial interpretation is used to reassess the legality of parties’ past actions committed in a different regulatory and practical context—at a time when there was no consistent and unambiguous legal position from the Grand Chamber of the Supreme Court in the specific wording and content formulated only on January 24, 2024. This approach bears signs of indirect retroactivity of judicial interpretation, resulting in the post-factum deterioration of the parties’ legal standing and the undermining of their legitimate expectations regarding the stability of legal regulation.
Particularly illustrative in this context is the fact that the Constitutional Court of Ukraine, by the ruling of the First Senate dated September 23, 2025 (No. 31-u(I)/2025), opened constitutional proceedings in case No. 3-115/2025(227/25) based on the constitutional complaint of Anatoliy Mykhailovych Pugachov. This case specifically examines the constitutionality of, among other things, Part 6 of Article 13 of the Law of Ukraine “On the Judiciary and the Status of Judges,” which stipulates that conclusions on the application of legal norms set forth in Supreme Court rulings are to be taken into account by other courts when applying such norms.
The mere fact of opening such proceedings does not, of course, mean that the provision has been found unconstitutional. However, it confirms the existence of a serious constitutional doubt regarding the limits of the permissible influence of new Supreme Court conclusions on the assessment of previously established legal relations. Under such conditions, imposing negative property consequences on suppliers in 2024–2026, and on the officials of customers—the risks of personal criminal prosecution and other repressive legal assessments of their actions based on a legal position that did not exist in 2021-2023—cannot be considered consistent with the constitutional standards of legal certainty, fairness, and proportionality.
In summary, this is not just about individual disputes or approaches to interpreting the Law “On Public Procurement.” It is about something fundamental: can the state, through judicial practice, change the “rules of the game” retroactively and impose liability for actions that, at the time they were committed, complied with the legal understanding and practice of that time?
If the answer to this question is affirmative, it will mean the actual erosion of the principle of legal certainty, the undermining of trust in the state, and the creation of a dangerous precedent where any new interpretation can be transformed into a tool for revising the past.
Instead, a constitutional approach requires something else: the state must be predictable, and the law must be stable over time. Otherwise, responsibility loses its legal character and takes on the features of retrospective punishment, incompatible with the principles of justice.
That is why the question of the limits of judicial conclusions in time is not merely a matter of legal technique, but a test of the maturity of the legal system and its ability to guarantee the basic rights and legitimate expectations of participants in legal relations.
