Parties to an electricity supply agreement may repeatedly increase the price of the goods in case of market fluctuations, but no more than 10% of the price set at the time of concluding the agreement – SC GC

The total increase in the price of goods through successive amendments to a public procurement agreement (in the event of fluctuations in the market price of the goods) cannot exceed 10% of the price of the goods determined in the agreement. This rule also applies to the procurement of gasoline and diesel fuel, natural gas, and electricity.

This conclusion was reached by the Grand Chamber of the Supreme Court.

According to the circumstances of the case, a prosecutor filed a lawsuit against an electricity supplier seeking to invalidate additional agreements to the electricity supply contract concluded through a public procurement procedure on the Prozorro electronic platform, as well as to recover excessively paid budget funds.

The prosecutor asserted that the parties had signed several additional agreements increasing the unit price of the goods, resulting in the price of electricity rising by more than 10%, and overall by 100.75%, while simultaneously reducing the volume of supply. This, according to the prosecutor, violated para. 2, Part 5 of Article 41 of the Law of Ukraine “On Public Procurement”.

The courts of previous instances fully satisfied the claims, stating that the total increase must not exceed 10% of the price of the goods as originally determined by the parties when concluding the agreement following the procurement procedure.

Upon review of the court decisions, the Grand Chamber of the Supreme Court noted that the disputed legal relations involved the procurement agreement and the contested additional agreements, which were concluded during the period when two different versions of Part 5 of Article 41 of the Law of Ukraine “On Public Procurement” were in force: 1) under Law No. 114-IX (the procurement agreement and one additional agreement) and 2) under Law No. 1530-IX (several subsequent additional agreements). When assessing these relations, the legislation in force at the time of their occurrence must be applied.

Having analysed the above-mentioned versions of the Law of Ukraine ‘On Public Procurement’, the Grand Chamber of the Supreme Court concluded that the provisions of para. 2 of Part 5 of Article 41 of the Law set out the rules for amending a procurement contract without conducting a new procurement procedure, in particular by allowing such amendments to be made in the event of an increase in the price of the goods, provided, however, that the cumulative effect of the price increase resulting from successive amendments to the contract does not exceed the statutory threshold percentage of the amount specified in the procurement contract, which is set at no more than 10% in para. 2 of Part 5 of Article 41 of the said Law, rather than being applied each time to every individual instance of amendment.

Changing the terms of a procurement agreement to increase the unit price of the goods by more than 10% is not permitted, including in the case of procurement of gasoline and diesel fuel, natural gas, and electricity.

The amendments and additions to para. 2, Part 5 of Article 41 of the Law introduced by Law No. 1530-IX relate only to establishing an alternative option for determining the starting point for calculating the period for changing the unit price of the goods – 90 days from the date of signing the procurement agreement or 90 days from the date of making changes to such an agreement regarding an increase in the unit price. These amendments do not cancel the prohibition established by the original version of the Law on increasing the unit price of the goods by more than 10%, including when procuring gasoline and diesel fuel, natural gas, and electricity.

The exception to the restrictions set out in the last sentence of para. 2, Part 5 of Article 41 of the Law applies solely to the time limits for changing the unit price in cases of amending agreements for the procurement of gasoline and diesel fuel, natural gas, and electricity (in these cases, the condition of changing the price only once every 90 days does not apply). This exception does not establish an upper limit for the increase (change) in the unit price of the goods.

Therefore, the Grand Chamber of the Supreme Court agreed with the conclusions of the previous instance courts regarding the invalidation of the disputed additional agreements to the contract. These agreements provided for an increase in the price of electricity exceeding the maximum 10% limit and lacked proper documentary justification. As a result, the grounds for paying for electricity at the prices set in these agreements ceased to exist. Consequently, the defendant must return the funds in the claimed amount on the basis of Articles 216 and 1212 of the Civil Code of Ukraine.

Resolution of the Grand Chamber of the Supreme Court dated 21 November 2025 in case No. 920/19/24 (proceedings No. 12-16гс25) — https://reyestr.court.gov.ua/Review/132556416

This and other legal positions of the Supreme Court can be found in the Database of Legal Positions of the Supreme Court - https://lpd.court.gov.ua.