21.05.2026
During the Energy Club expert discussion “Public Electricity Procurement: Legal Certainty, Retrospective Risks, and Energy Security”, held on May 11 in Kyiv, lawyers and experts discussed one of the most sensitive issues in the energy sector — how judicial practice in the field of public electricity procurement affects the stability of contracts, the responsibility of the parties, and the predictability of regulation. The focus of the discussion was the systemic conflict between the principle of irreversibility of the law and the consequences of judicial interpretation, which, according to some in the legal community, can create retrospective risks for already executed contracts and budget obligations.
Olesia Serebrianyk, a lawyer specializing in energy law and the energy market, a candidate of legal sciences, has detailed the problem through the prism of procedural law, constitutional control, and the practice of commercial and criminal courts.
Retrospectivity of judicial practice as a procedural problem
Olesia Serebrianyk emphasized that formally the legislation of Ukraine does not allow for the retroactive effect of the law in time, however, in practical terms, the situation is complicated by the influence of court decisions of the highest instances.
“Today, decisions can be applied retrospectively, as we see from judicial practice, only on the basis of a court decision. That is, our law does not have retroactive effect in time. However, the decisions of the Grand Chamber or the Supreme Court… have retrospective application,” she noted.
According to the lawyer, this is what creates procedural uncertainty for market participants: the same legal norm can take on a different meaning after the conclusion and execution of the contract, which creates risks of reviewing legal relations post factum.
In this context, Olesya Serebryanyk drew attention to the institution of a constitutional complaint as a procedural mechanism of protection:
It is the second option, according to her, that has the greatest procedural significance, since it opens the way to review final court decisions under exceptional circumstances.
Requalification of liability in public procurement disputes
A separate section of the speech was devoted to how the division of liability between the parties to contracts in the field of public electricity procurement is transformed in judicial practice.
Olesya Serebryanyk emphasized that the Law “On Public Procurement” contains a certain model of liability, however, in the practice of the courts, in her opinion, it is actually being displaced:
“By the Law on Public Procurement, the legislator established the subjects of liability, the type of liability, the terms of liability. And… the supplier’s liability is not provided for at all.”
From a procedural point of view, she drew attention to an important aspect: in disputes about the invalidity of additional agreements and the recovery of funds, the construction of an “incorrect method of protection” is often used, when the prosecutor or plaintiff tries to prove a violation through mechanisms that are not inherent in classical civil or economic regulation.
This concerns, in particular, attempts to apply the norms on the invalidity of transactions (Articles 215–216 of the Civil Code of Ukraine) without proving traditional grounds, such as lack of authority or violation of form, which, in her opinion, goes beyond the boundaries of the proper method of protecting the right.
Criminal procedural aspect and supplier status
The lawyer focused on the criminal legal dimension of disputes in the field of procurement, where cases against officials of customers and suppliers are considered in parallel.
She drew attention to the key argument that has already been reflected in judicial practice: the supplier is not a manager of budget funds.
This position, according to her, is of fundamental importance for the correct qualification of the elements of crimes, in particular in cases related to the alleged infliction of losses on the state when changing the contractual price. Therefore, the application of Articles 191 or 364 of the Criminal Code of Ukraine to suppliers requires particularly careful proof of the elements of the crime.
Systemic problem
In general, Olesya Serebryanyk outlined a broader problem – the gap between the legislative construction of liability in the field of public procurement and how it is applied in judicial practice.
This, in her opinion, creates risks of legal unpredictability for the entire energy market, where every decision on price or conditions is the clause may be retrospectively overestimated.
Concluding her speech, the lawyer in the field of energy law emphasized a principled legal position: “The law provides for liability for its violation by customers, not suppliers.”
Olesya Serebryanyk’s speech actually outlined a key procedural problem of the Ukrainian energy market — the lack of stability in the application of law in the field of public electricity procurement. The combination of constitutional mechanisms, economic and criminal proceedings, as well as judicial practice forms a complex system of risks, where the boundary between the interpretation of the law and its retrospective application becomes decisive for energy security and predictability of contracts.
