Equity as a General Principle in EU External Relations Law

Equity has become omnipresent in international law. The same is true in EU law where equity has become a growing concern in EU secondary law and the CJEU’s case law, especially in EU migration, environment, health, finances, infrastructure/energy and AI law. Despite its relevance, equity remains poorly understood by international law and EU law practitioners alike. Worse, its theoretical treatment in international law has remained largely doctrinal and mostly focuses on specific and codified equitable principles or solely on specific international law regimes. In EU law, the doctrinal treatment of equity is actually very recent and much sparser. This article is the first attempt to provide a discussion of equity in the contemporary philosophy of EU law. Its argument unfolds in three steps: first, it explains that equity in international and EU law is at a crossroads: revived in its practice, it is hampered in its theoretical treatment by a sterile opposition between legality and equity and, conversely, by a sterile identification of legality and equality; secondly, it explores what the relationship between justice, equity and law should be at the international and EU level, drawing on the specific circumstances of international and EU law to explain why equity’s place and role therein are even more important than domestically; thirdly, it argues that equity should act as a greater counterweight in the balance with the international and EU rule of law than it does domestically, and it reflects on how equity reasoning could best be organised in the future.