דוקטרינת המשאב החיוני: מתי מונופול נדרש לספק גישה למתחריו?

The essential facility doctrine, which prohibits a monopolist from refusing access to an input it controls, which is essential for competition in a primary or secondary market, is one of the most controversial and interesting doctrines in competition law worldwide.Finding that a facility as “essential,” inevitably implies that any market participant who is denied access, is excluded from the market. The doctrine is hence intended to deal with situations whereby the monopolist excludes competitors by means of refusing their access to a facility they require in order to operate. At the same time, an overly broad application of the doctrine might hinder incentives of both the monopolist and firms seeking access, to invest and develop competing or unique facilities.The desired scope of application of the essential facility doctrine, applied in Israel for the first time by Honorable Judge Naor (as she was called then) in the Dubek case,remains highly relevant to date, with the creation of new essential facilities in digital markets. Such facilities raise barriers to actual and potential competitors, that merit an elaborate examination of the doctrine.This article critically examines the conditions for the application of the doctrine by courts in Israel, EU, and U.S. It further assesses the application of the doctrine in digital markets, as well as in circumstances where monopolistic power stems from intellectual property rights.