ROMANIA Law and Practice Contributed by: Manuela Guia, Otilia Vîlcu, Violeta Geru and Cristina Badea, GNP Guia Naghi & Partners
3. Limitation Periods and the Duration of Litigation 3.1 Statute of Limitations Claims for antitrust damages under GEO 170/2020 are subject to a five-year limitation period, which does not begin to run until three conditions are cumulatively satisfied: the infringement has ceased, the claimant knew or should have known of the infringing conduct and the harm it caused and the identity of the infring - er is known. The limitation period is suspended for the duration of the Competition Council’s investiga - tion and for any court proceedings challenging the underlying infringement decision, including where the parties are engaged in alternative dispute resolution regarding the damages claim. Where the relevant conduct predates the entry into force of GEO 39/2017 on 8 June 2017, the shorter three-year general limitation period under the Civil Code applies instead of the five years introduced by the Damages Directive framework, since the substan - tive extension of the limitation period is not applied retroactively. This distinction has been material in several Trucks Cartel cases concerning conduct that ceased well before the transposition of the Directive. Even under the general three-year rule, the same subjective knowledge requirement applies, so that time only begins to run once the claimant is reasonably able to identify the infringement, the harm and the identity of the infringer, a standard which the appellate courts have interpreted restrictively in the claimant’s favour. In one case, the first-instance court initially held that the three-year general limitation period under the Civil Code applied, running from the date the European Commission’s decision was issued, but the Bucharest Court of Appeal overturned this on the basis of the ECJ’s Cogeco ruling, holding that the mere publica - tion of a press release is not sufficient to trigger the limitation period and that time should instead run from publication of the decision in the Official Journal of the European Union.
parties tend to rely heavily on expert evidence to establish or contest quantum. Second, a final decision by the competition authorities creates an irrefutable presumption of infringement. As noted in 2.3 Impact of Competition Authorities , a non-final decision may still carry strong evidentiary weight as an administrative deed under general pro - cedural rules. However, in stand-alone cases, the claimant must bring forward evidence of the infringement. When presumptions apply, the burden to overturn them lies with the other party. 2.5 Pass-On Defence The pass-on defence is available to defendants in Romanian follow-on and stand-alone claims, allow - ing a defendant to argue that the direct purchaser suffered no loss or a reduced loss, because it passed all or part of the overcharge on to its own customers. The burden of proving that the overcharge was passed on rests with the defendant, who may seek disclosure of evidence from the claimant or from third parties to support this defence. The defence has been pleaded in several Romanian Trucks Cartel cases. The defendants argued that the claimant, as an indirect purchaser, bore the burden of proving that it had not passed the alleged overcharge downstream to its own customers, whether through its resale prices or through a buy-back mechanism and that a professional operator could reasonably be expected to have incorporated any overcharge into its pricing. However, both claims were initially dismissed as inadmissible following the unconstitutionality of GEO 39/2017, before being sent for retrial on appeal on the basis that the underlying tort action survived independently of that ordinance, meaning the sub - stantive pass-on arguments raised by the defendants have not yet been tested by a Romanian court on their merits.
145 A NTITRUST LI T IGATI O N 2026
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