FINLAND Law and Practice Contributed by: Kari Marttinen, Laura Leino, Outi Iso-Markku and Aino Lahti-Nuuttila, Erottaja Attorneys Ltd
However, the parties may transfer the liability inter partes from a seller to a purchaser by an agreement and a liable party may attempt to secure recourse from another party through contractual indemnity. Nevertheless, these civil agreements are valid only between the parties and do not bind the authorities or third parties. Under current case law, it is also not entirely clear how such agreement between the par- ties remains binding if contamination is later discov- ered in the area. 12.3 Determining Liability The Finnish environmental liability legislation rests upon the “polluter pays” principle. The Environmental Protection Act does not include any specific provi- sions on the division of the liability if more than one party has contributed to the contamination. However, pursuant to the Supreme Administrative Court’s prec- edent on the issue (KHO 2005:11), if several operators are suspected to have caused soil contamination, the parties are considered jointly and equally responsible for conducting the contamination studies and bearing the related costs if the parties cannot clearly verify their contribution to the contamination. Furthermore, if the soil is considered contaminated and several operators have been operating in the area, in case law, the parties have been responsible for only their share of the contamination. If the parties’ share of the contamination cannot be separated from one another, the parties are considered jointly and sever- ally liable. 12.4 Proceedings Against Polluters As mentioned throughout 5. Environmental Liability , in accordance with the Act on Compensation for Envi- ronmental Damage, compensation must be paid for damage resulting from pollution or other similar nui- sance to those affected by the pollution if it is shown that there is a probable causal link between the activ- ities and the loss. However, this compensation will be paid only if toleration of the nuisance is deemed unreasonable. When considering the nature of the nui- sance, consideration will be given to – among other things – local circumstances, the situation resulting in the occurrence of the nuisance, and the regularity of the nuisance elsewhere in similar circumstances. However, the obligation to tolerate the nuisance will
not apply to loss inflicted deliberately or criminally, nor to bodily injury or material loss of more than minor significance. In criminal cases involving an infringement of public interest, the Finnish Supervisory Agency is the claim- ant. In connection with proceedings of criminal cases subject to public prosecution, private persons may also file claims for compensation. Further, accord- ing to the Environmental Protection Act, the permit authority will – when granting an environmental per- mit – order compensation for any damage from water pollution caused by the activity. One can also submit an application to the permit authority to claim com- pensation for damage not foreseen when the permit was granted. When an application is submitted to a permit authority, the matter cannot be simultaneously handled in a district court as an action. 12.5 Investigating Environmental Accidents The general rule is that when there is a suspicion that the soil has been contaminated, the polluter is responsible for inspecting the state of the soil and the need for remediation. Regardless of the outcome of the inspection, the findings must be reported to the supervisory authority (Finnish Supervisory Agency). If the polluter has not conducted the necessary inspec- tion, the authority can order the polluter to conduct the required studies and investigations. Based on the conducted study, the authority will render its decision regarding the need for remediation. In addition, under the Environmental Protection Act and the Waste Act, the supervisory authorities are obliged to report a matter to the police for preliminary investigation if they suspect that a crime has been committed. However, notification is not required if the act is considered minor under the circumstanc- es and it is determined that public interest does not necessitate pressing charges. However, supervisory authorities are increasingly likely to report matters to the police for preliminary investigation.
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