Oonagh Breen

University College Dublin, Sutherland school of law, Faculty Member

Followers

Following

Co-author

Public Views

Oonagh Breen is a Professor of Law at the Sutherland School of Law, University College Dublin. She specialises in the legal regulation and governance of charities, working on a comparative law basis with a special interest in the common law. A former President of the International Society for Third Sector Research and a current member of ICNL's international advisory board, she is a regular European and international speaker and has published extensively. She is co-author with Philip A. Smith of Law of Charities in Ireland (Bloomsbury Professional, 2019), the leading Irish textbook on charity law.

less

Interests

Uploads

Talks by Oonagh Breen

Legal Environment for Philanthropy in Europe

by Juan-Cruz Alli Turrillas and Oonagh Breen

European philanthropy is as diverse as European societies. This latest research conducted by lea... more European philanthropy is as diverse as European societies. This latest research conducted by leading experts provides insights into the legal and social landscape of philanthropy across Europe. Each pro le contains information such as requirements for registration, reporting, economic activity, and governance, tax treatment as well as trends and developments. To date, we have released country reports for the 27 EU member states. Further 13 country reports will follow in the first half of 2021. These country reports would not have been possible without the contribution and rigorous analysis of the national experts to whom we are indebted. We would also like to acknowledge that these country profiles were first launched in 2002 by the EFC and have been updated every few years since. This fifth edition has been published under the Philanthropy Advocacy initiative, a joint Dafne and EFC project.

Download

Papers by Oonagh Breen

Regulatory Reviews: Revolutionary Re-imagining of Charity Law or Simply Restatements of Convenience?

Voluntas, Apr 8, 2024

This article examines a decade of charity law review processes in six jurisdictions-Australia, Ne... more This article examines a decade of charity law review processes in six jurisdictions-Australia, New Zealand, Northern Ireland, Scotland, England and Wales and Ireland. Using a life-cycle basis viewed through a functional comparative lens, it examines review terms of reference, stakeholder involvement in public consultations, report recommendations and governmental responses. The article compares post-review recommendation implementation across government-owned and independent review processes. In identifying areas most open to and most difficult to reform (including charity definition and advocacy) and probing the hidden state/non-profit sector tensions that underlie such reform attempts, this article provides new insights for future review processes.

Download

Third Sector Organisations in Ireland: Assembling the Regulatory Jigsaw Pieces of an Evolving, If Fragmented, Sector

European Non-Profit Oversight: The Case for Regulating from the Outside In

Download

Pemsel Plus? Charitable Purposes – An Irish Perspective

This Article, originally presented at the Australian Centre for Philanthropy and Nonprofit Studie... more This Article, originally presented at the Australian Centre for Philanthropy and Nonprofit Studies’ Conference on the Modernisation of Charity Law in 2009, reviews the emergence of a modern statutory definition of charity in Ireland. The article compares the new Irish definition with those new statutory definitions in England and Wales, Scotland and Northern Ireland. It also examines those areas omitted – including the advancement of human rights, sporting activities and recreational and social activities – and explores both the reason for their omission and their respective treatment in other jurisdictions. This version of the paper also includes two Appendices, the first of which extracts the relevant charitable purposes statutory provisions inIreland, England and Wales, Scotland and Northern Ireland. The second appendix tracks each provision of the new Irish statutory definition of charity, identifying its likely origins along with existing exemplar charities and mapping each provision with both its Revenue equivalent in Ireland and comparative statutory equivalents in the UK. A substantially revised and shortened version of this article is available in McGregor Lowndes and O’Halloran (eds), Modernising Charity Law: Recent Developments and Future Directions (Cheltenham: Edward Elgar Publishing, 2010).

Estoppel In The Irish Courts: The Ebb And Flow Of Unconscionability: Recent Developments

Journal of Malaysian and Comparative Law, Dec 1, 1999

Landlord and tenant: a new lease of life for the doctrine of specific performance

The Northern Ireland legal quarterly, Jul 6, 2020

Download

Country Report 2018: Ireland

Individuals are generally free to form organizations in Ireland without State approval. For POs, ... more Individuals are generally free to form organizations in Ireland without State approval. For POs, there are no minimum capital requirements or registration processes other than those required by the nature of the entity created. Thus, if the PO is formed as a corporation it must register with the Companies Registration Office. However, if the PO is unincorporated and is formed by way of a constitution or a set of rules, no registration or approval process is required from an establishment perspective

Cross-Border Issues in the Regulation of Charities: Experiences from the UK and Ireland

Download

Regulating Charitable Solicitation Practices - the Search for a Hybrid Solution

Financial Accountability and Management, Feb 1, 2009

A review of four fundraising regulatory models currently in existence in common law jurisdictions... more A review of four fundraising regulatory models currently in existence in common law jurisdictions reveals a mismatch between the stated policy goals that these models set out to achieve and the practical, albeit unintended, consequences that flow from the implementation of these models. The paper highlights some of these policy/implementation discords. It proposes a hybrid model, which is designed to resolve some of these inconsistencies, and considers the potential for the model's practical application in one of the jurisdictions surveyed, Ireland.

Philanthropic Giving in Ireland: A Scoping Project

Social Science Research Network, 2019

For a developed country, with a reputation for generosity towards the needy, Ireland has a very l... more For a developed country, with a reputation for generosity towards the needy, Ireland has a very limited profile in structured, persistent philanthropic giving. At €120m, institutional philanthropic giving (as defined) represents a tiny proportion of Ireland’s €11bn turnover in the non-profit sector. Philanthropists need evidence of need and potential impact if their donations are to be well informed; the public needs to witness and approve of the effects of philanthropy if philanthropy is to be recognised as creating social goods; policymakers need tangible evidence to support decision-making including tax regulation. Recognising the growing coalition of interest in measuring philanthropy and the lack of any Irish equivalent to the annual surveys produced overseas, this paper sets out to close the knowledge gap by identifying the factors necessary to make Irish philanthropy more transparent and better understood. Supported by Benefacts, a leading non-profit research body in Ireland, the researchers aim to conduct a multi-annual research project 2018–21 to set out for the first time an agreed definition of ‘philanthropy’ in the Irish context and to provide a comparative basis for the study of Irish philanthropy by third party researchers. This paper is the first step towards facilitating valid international philanthropic comparisons between Ireland and other similar countries. Identifying the available data sources on, and gaps in knowledge about, philanthropy in Ireland, focusing specifically on gifts and receipts, it assesses the discernible trends in philanthropic giving in Ireland.

Holding the Line: Regulatory Challenges in Ireland and England when Business and Charity Collide

Edward Elgar Publishing eBooks, Oct 29, 2010

Developing a legal framework to manage the interactions between the worlds of commerce and charit... more Developing a legal framework to manage the interactions between the worlds of commerce and charity presents challenges. Should there be situations in which charities can engage in trade in competition with for-profit firms? Should there be limits to the extent of any such involvement? Should the 'relatedness' of the business activity to charitable mission act as a mitigating factor? Or, should the ultimate 'destination' of the resulting income be the deciding factor in sanctioning charitable trading, regardless of the relatedness of the activity to the charitable mission? Should charity law or tax law control the extent to which the market/charity boundary accommodates incursions by either business or charity in the other sphere? Even to the degree to which such intersectoral activity is tolerated, what should be the financial and structural consequences for entities that engage regularly and substantively in such 'cross-border' activities? Prompted by the 2008 Australian High Court decision in Word Investments, this paper reviews the legal framework governing so-called 'hybrid activity' in Ireland and the United Kingdom, acknowledging both the difficulties caused by the shifting nature of the boundary line between the business and nonprofit sectors and the challenges inherent in any reformulation of the guiding legal principles. The paper looks at these issues from both a trading and charity law perspective and a trading and tax law perspective before considering how Irish and UK law might have responded differently to the Australian courts in a Word Investments type scenario.

Download

Redefining the measure of success: a historical and comparative look at charity regulation

Edward Elgar Publishing eBooks, Dec 28, 2018

4 and Ireland each struggled a little to launch their respective regulators in the subsequent yea... more 4 and Ireland each struggled a little to launch their respective regulators in the subsequent years before finally achieving success in Australia in 2013 (although the existence of the Australian Charities and Not-for-Profits Commission (ACNC) was only guaranteed in February 2016 when federal government threats of abolition were lifted) and in 2014 with the Irish Charities Regulatory Authority (CRA). Charity law reform was not confined to Europe and the Antipodes. Asia also made strides with Singapore revamping its Commissioner of Charities (SCOC) and establishing its new Charity Council in 2007 2 while China introduced its first Charity Law in 2016, making civil affairs departments at county and higher levels responsible for the registration and oversight of Chinese charitable organisations. 3 These countries all share, at least in principle, a similar regulatory aim. They strive to identify and catalogue the very existence of the charity sector within their borders; to approve their status as charities in accordance with predetermined statutory criteria and, once registered, to make those organisations accountable for the funds they receive and transparent in the conduct of their affairs in the achievement of their charitable goals. The impetus for this 2 The office of the Commissioner of Charities (SCOC), established by the Charities Act 1982, sat under the Ministry of Finance and concerned itself with tax matters for the first 25 years of its existence. Following the recommendations of the Final Report of the Inter-Ministry Committee on the Regulation of Charities and Institutions of a Public Character (March 2006), the Singapore Government increased its registration and regulation responsibilities in the Charities Act (Cap 37, 2007 Rev Ed Sing), transferring it to the Ministry of Community Development, Youth and Sport. The 2007 Act also established the Charity Council to operate in parallel with the SCOC and promote self-regulation. It is comprised of sector representatives, representatives from accountancy, law and corporate governance fields, as well as state ministries.

Download

United Mizrahi 28.11.90, Immunity for Suit? - Mareva Injunctions, Constructive Trusts and the Salutary Tale of Mizrahi Bank

European review of private law, Mar 1, 2001

A Mareva injunction allows a claimant to freeze a defendant's assets pending litigation. The ... more A Mareva injunction allows a claimant to freeze a defendant's assets pending litigation. The injunction regularly contains provisos for the defendant to be able to meet certain types of regular expenditure and meet legal costs. The defendant in United Mizrahi Bank was being sued for breach of trust: he was an employee of the bank who had allegedly arranged for customers to pay money to entities controlled by him. The bank obtained a Mareva injunction pending the hearing of its claim for the return of the moneys obtained through this breach of trust. The claim was proprietary in nature. The bank could "trace" its ownership of the funds into the hands of the defendant and his associates. The defendant sought declarations from the English High Court that by using some of the frozen assets to fund his legal expenses in defending the action, he would not be in breach of the Mareva injunction, and that if the claim against him was upheld, the expenditure of money on legal services would not be regarded as a further breach of trust. In relation to the first point, Rattee J held that the Mareva injunction contained a specific proviso for legal expenses, and therefore the use of assets for this purpose could not be a breach of the injunction. In relation to the second point, Michael Burton QC was unable to provide reassurance. Although the defendant would not be in breach of the Mareva injunction by using the disputed assets to fund his defence, it was possible that the assets would be found to be the property of the bank. If they passed into new hands - in casu those of the defendant's solicitors - there was a risk that those solicitors might also be made subject to a claim for their return.

Redefining the Regulatory Space? The First Forays of the Irish Charities Regulatory Authority

Hart Publishing eBooks, 2020

Legal, Registration, and Taxation Issues of Associations

Palgrave Macmillan UK eBooks, 2016

National and state/province laws regulate Membership Associations (MAs) and other nonprofit organ... more National and state/province laws regulate Membership Associations (MAs) and other nonprofit organizations (NPOs) in contemporary nations, although this is a very recent historical development (last century or two, usually). Legal treatment of MAs differs in civil law versus common law systems. In common law countries, MAs have much more freedom to form and operate, compared to civil law regimes, where the government seeks to control all NPOs. In either type of regime, Public Benefit Organizations (PBOs), seeking to foster the general welfare, usually receive special legal, registration/incorporation, and tax treatment, often including exemption from income taxes on net revenues. This chapter reviews the global legal situation of MAs regarding registration or incorporation as a Legal Person, freedom of and barriers to MA formation, obtaining public charity status, transparency, accountability, and dissolution.

Minding the Pennies: Global Trends in the Regulation of Charitable Fundraising

Social Science Research Network, 2014

This chapter explores current global trends in fundraising regulation. The perennial issue of eff... more This chapter explores current global trends in fundraising regulation. The perennial issue of effective fundraising regulation has thwarted many policymakers the world over. Indeed, what constitutes effective regulation is a contested issue. Overly prescriptive regulation dates quickly and becomes moribund as technology changes the manner in which funds are raised and the problems associated with these ventures. Enabling regulations, on the other hand, that require agency input for effective oversight, can be hostages to fortune being either dependent upon the good offices of an agent (such as a local authority, police, tax authority) whose primary concern may be far removed from charity regulation per se or being purely self-regulatory and thereby lacking the necessary teeth of enforcement and sanction. The growing ability of organisations to fundraise across state/country borders, prompted in part by donor migration and the ease with which remote e-donations may now be made, has brought to the fore technical legal issues relating to registration requirements, jurisdiction to regulate non-state fundraisers (particularly when the donations in question are unsolicited) and the burden of conflicting regulatory requirements that apply when an organisation seeks to run a nationwide fundraising campaign, not to mention newly emerging concerns prompted by the nature of electronic fundraising. The emergence of hybrid regulation (also referred to as ‘co-regulation’), which seeks to combine the operational benefits of local non-statutory enforcement with the deterrent force of potential statutory intervention should grassroots oversight fail, provides an interesting twist on the traditional options of statutory versus non-statutory regulation. Recent attempts to develop uniform standards and regulatory requirements across associations of fundraising organisations and from the perspective of independent fundraising regulatory bodies in conjunction with moves at state level to develop uniform registration requirements in some jurisdictions also merit further exploration. This chapter begins by setting out a theoretical framework for the regulation of fundraising before turning to a consideration of recent global trends in the context of both statutory and non-statutory initiatives. To this end, particular consideration is given to the growing resort to cross-jurisdictional fundraising and emerging regulatory and facilitative innovations to support such activity. Attention is also paid to new and emerging forms of electronic fundraising and the question is probed as to whether it is too soon to regulate this form of giving. Finally, the chapter examines the place of charitable fundraising within the broader regulatory framework and how connections with other regulators influence the oversight of fundraising before assessing the potential for greater global convergence in fundraising regulatory trends.

Chapter 5: An Unrelated Income Tax for Australia?

Waiting for the Big Wave: A Fifty-Year Retrospective on the Ebb and Flow of Irish Charity Regulation

Cambridge University Press eBooks, Dec 22, 2016

Download

The European Foundation Statute Proposal: Striking the Balance between Supervising and Supporting European Philanthropy?

Nonprofit policy forum, Aug 23, 2013

This article examines the Commission's Proposal for a Council Regulation on the Statute for a Eur... more This article examines the Commission's Proposal for a Council Regulation on the Statute for a European Foundation (Fundatio Europaea). Focusing on the proposed transparency and accountability provisions, it interrogates whether these provisions are sufficiently robust to facilitate effective Member State supervision of this proposed new supranational legal form, given identified weaknesses in existing Member State foundation regulatory regimes. Consideration is also given to the Statute's proposed reporting and auditing mechanisms. Particular attention is paid to the challenges inherent in standardising financial reporting standards and the missed opportunities to introduce best practice in the draft Regulation. The article concludes by identifying a number of interpretative loopholes in the existing proposal, which if adopted in its current format, would weaken the potential for an effective, efficient and feasible solution to the problems currently experienced by many foundations operating on a cross-border basis in Europe.

Download

Oonagh Breen

Uploads

Talks by Oonagh Breen

Papers by Oonagh Breen

Log In