Short answer
The limitation period comes from the law governing the contract, not from the law of the court hearing the claim.
Rome I places it squarely within the scope of the applicable law:
"The law applicable to a contract by virtue of this Regulation shall govern in particular: ... (d) the various ways of extinguishing obligations, and prescription and limitation of actions" —
So a claim brought in a Dutch court on a contract governed by Spanish law is subject to the Spanish limitation period. The Dutch court applies Spanish limitation rules as part of Spanish substantive law.
This matters because national limitation periods for contractual claims vary widely across the EU — from three years in some systems to ten or more in others, with different starting points and different rules on suspension and interruption. Choosing the governing law is therefore also choosing the limitation regime.
Why this is a substantive question
Some legal traditions historically treated limitation as procedural, and therefore as a matter for the forum. Rome I settles the question for contractual obligations within its scope: limitation is substantive and travels with the governing law.
Rome I Article 1(3) does exclude "evidence and procedure" from its scope, without prejudice to Article 18. But limitation is not left to that exclusion — it is expressly listed in Article 12(1)(d) as within the scope of the applicable law. The two provisions read together, not in competition.
The practical consequence is that "we will sue at home, so our own limitation period applies" is wrong. Forum shopping does not change the limitation clock for a contractual claim.
What the governing law decides
Because limitation sits with the lex causae, that law determines the whole of the limitation analysis, not merely the headline number:
- The length of the period.
- When it starts — on breach, on the date the debt fell due, on discovery of the damage, or on some other trigger. Start dates differ as much as lengths do.
- Suspension and interruption — whether negotiations, a letter of demand, partial payment, acknowledgement of the debt, or an application for mediation stops or resets the clock.
- Long-stop periods that cap the effect of a discoverability-based start date.
- The effect of expiry — whether the claim is extinguished, or merely unenforceable unless the defence is raised. In some systems limitation must be pleaded and is not applied by the court of its own motion.
- Whether the period can be varied by agreement, and within what limits.
That last point is often overlooked. Contractual time bars, claim-notification clauses and shortened limitation provisions are assessed under the governing law, which may permit, limit or prohibit them.
Where the forum still has a role
Two carve-outs matter.
Procedure remains for the forum. Article 1(3) excludes evidence and procedure. How proceedings are commenced, what counts as issuing or serving a claim, and which procedural step stops time under the forum's own rules are questions for the forum. There is a genuine interface problem here: the governing law may say that limitation is interrupted by "commencement of proceedings", and the forum decides what commencement means in its system.
Practitioners should not assume that the step which stops time in their home system is the step that the governing law treats as interruptive.
Public policy is a backstop. Article 21 permits refusal to apply a provision of the specified law "only if such application is manifestly incompatible with the public policy (ordre public) of the forum". The threshold is high — "manifestly" — and a limitation period that is merely shorter or longer than the forum's own will not meet it. An extremely short period leaving no realistic opportunity to sue is the kind of case sometimes discussed, but it is exceptional.
Overriding mandatory provisions. Article 9(2) preserves the forum's overriding mandatory provisions. Some Member States treat particular limitation or prescription rules in protective contexts as falling into that category.
Renvoi is excluded. Article 20 means the governing law is applied without its private international law rules. You take that country's domestic limitation law, not its conflicts rules.
Two claims, two answers
The most common practical error is assuming one limitation period governs the entire dispute. Commercial disputes frequently plead contract and non-contractual claims together.
Contractual claims follow Rome I and the contract's governing law.
Non-contractual claims follow the Rome II Regulation. Its Article 15 performs the same function as Rome I Article 12, bringing the manner of extinguishing obligations and rules of prescription and limitation within the scope of the applicable law — but that law is identified by Rome II's own connecting factors, which are different. The general rule is the law of the country where the damage occurs, subject to common habitual residence and a manifestly-closer-connection escape.
Pre-contractual claims fall under Rome II Article 12, which routes culpa in contrahendo back to the law that applies, or would have applied, to the contract. That usually realigns the two, but by a different route.
A claim in contract and a parallel claim in tort arising from the same facts can therefore be governed by different laws with different limitation periods — one live, one time-barred.
Practical consequences
Diarise against the right law. Limitation diaries built on the forum's periods are unsafe for cross-border contracts. Identify the governing law first, then the period, then the start date under that law.
Check the start date, not just the length. A ten-year period running from breach can expire before a three-year period running from discovery, depending on the facts.
Take local advice on interruption. Whether a letter before action, a without-prejudice negotiation or a mediation request interrupts time is a question of the governing law, and the answers differ sharply.
Remember the effect of a change of governing law. Because limitation falls within Article 12(1)(d), a change of governing law under Article 3(2) can shift the limitation position — potentially reviving or barring a claim. Article 3(2) protects formal validity and third-party rights, but says nothing about limitation between the parties.
Consider limitation when choosing the law. At the drafting stage, the limitation regime is a legitimate and usually ignored factor in selecting a governing law.
Operational checklist
- Identify the governing law under Rome I before calculating any deadline.
- Apply that law's limitation period, start date, suspension and interruption rules.
- Establish whether expiry extinguishes the claim or creates a defence that must be pleaded.
- Check whether the governing law permits contractual time bars, and whether yours is valid.
- Separate contractual from non-contractual claims and run Rome II for the latter.
- Confirm with local counsel which procedural step in the forum interrupts time.
- Treat Article 21 public policy as a genuine long shot, not a plan.
- Re-check limitation before agreeing any change of governing law.
Conclusion
For a contractual claim in an EU court, limitation is decided by the law governing the contract. Article 12(1)(d) puts prescription and limitation inside the scope of the applicable law, so the forum's own periods are irrelevant to the contractual claim.
The traps are at the edges. The forum still controls procedure, including which step stops the clock. Parallel non-contractual claims follow Rome II and can have a different period. And because limitation travels with the governing law, changing that law changes the deadline.
Identify the governing law first. Everything about limitation follows from it.
Sources
This article provides general legal information, not advice for a specific matter. Laws, facts and procedural deadlines may change the result. Follow the linked primary sources and obtain local advice before acting.