Greetings. As a lawyer with many years of experience, I have analyzed the court decision you provided. Here is a detailed breakdown:
1. **Subject of the dispute:** The prosecutor filed a lawsuit with the court to invalidate a public procurement contract and to recover the funds received under this contract for the benefit of the state due to anti-competitive concerted practices by the bidders.
2. **Court’s arguments:**
– The court emphasized that the sanction provided for by Part 3 of Article 228 of the Civil Code of Ukraine (recovery of everything received under the transaction for the benefit of the state) is of a confiscatory nature and is not a civil law institution.
– The Supreme Court took into account the legal position of the Joint Chamber, set forth in the ruling dated December 19, 2025, in case No. 922/3456/23, which is mandatory for application by virtue of procedural law.
– The court noted that anti-competitive behavior of bidders does not in itself transform a contract into one that is knowingly contrary to the interests of the state and society within the meaning of Article 228 of the Civil Code.
– To apply this provision, it is necessary to prove that the transaction is inherently unlawful, and does not merely violate competition rules, for which specific liability (a fine from the AMCU) is already provided.
– The court emphasized that the application of confiscation without a court verdict must meet the criteria of proportionality determined by the case law of the ECHR and cannot be an excessive interference with the right to property.
– Since the prosecutor did not prove that the state suffered significant losses or that the transaction was aimed at undermining the interests of the state, there are no grounds for applying the confiscatory sanction.
– The court in this decision confirmed the application of the legal position of the Joint Chamber of the Supreme Court dated December 19, 2025, which significantly limits the possibility of applying Part 3 of Article 228 of the Civil Code to contracts concluded in violation of competition legislation, effectively departing from previous practice that allowed such a broad interpretation.
3. **Court’s decision:** The Supreme Court set aside the decisions of the lower courts and rendered a new decision refusing to satisfy the prosecutor’s lawsuit.
