# Works Council and AI: Codetermination and Checklist > Works council and AI: What § 87, § 90, § 95 and § 80 BetrVG and the EU AI Act require, plus a checklist for software roll-out. Read more now. URL: https://techport.ai/en/hr-software/betriebsrat-ki --- 1. [HR Software](/en/hr-software)/ 2. [Guide](/en/hr-software#ratgeber)/ 3. Works Council and AI techport HR Suite # Works Council and AI: Codetermination in the Introduction of AI and HR Software AI is present in many HR tools today: in applicant screening, in assistants for internal queries, in evaluations. As soon as such a system processes data about employees, the works council has a say. Since June 2021, the Betriebsverfassungsgesetz (Works Constitution Act – BetrVG) explicitly mentions artificial intelligence in three places. From December 2027, obligations under the EU AI Act will also apply. This guide explains what rights the works council has regarding AI, what case law says, and how to plan a roll-out. At the end, you will find a checklist. It does not constitute legal advice. How to organise a systems project with the works council is described on our advisory page [HR Software and Works Council](/en/hr-beratung/mitbestimmung-und-compliance/betriebsrat). ## In brief * AI in HR software is almost always subject to codetermination pursuant to § 87 Abs. 1 Nr. 6 BetrVG. It is sufficient that the system is objectively capable of monitoring conduct or performance. * The employer must inform the works council as early as the planning stage, providing relevant documents (§ 90 BetrVG). * Assessment criteria for staff selection can constitute selection guidelines requiring consent, even when AI is involved (§ 95 Abs. 2a BetrVG). * For the assessment of AI, an expert is deemed necessary (§ 80 Abs. 3 BetrVG). * From 2 December 2027, employers must inform employee representatives before deploying high-risk AI (Art. 26 para. 7 KI-VO \[EU AI Act\]). ## What rights the works council has regarding AI Provision What it requires Nature of the right § 87 Abs. 1 Nr. 6 BetrVG Codetermination on technical systems capable of monitoring conduct or performance enforceable, otherwise conciliation committee § 90 Abs. 1 Nr. 3, Abs. 2 BetrVG Information and consultation as early as the planning stage, including on the use of AI Information and consultation § 95 Abs. 1, 2, 2a BetrVG Consent to selection guidelines, also when using AI Consent § 94 BetrVG Consent to personnel questionnaires and general assessment principles Consent § 80 Abs. 3 BetrVG Expert for AI is deemed necessary Support Art. 26 para. 7 KI-VO Information before deploying high-risk AI in the workplace Information, from 2 Dec 2027 ### § 87 Abs. 1 Nr. 6 BetrVG: technical systems The works council has codetermination rights regarding the “introduction and application of technical equipment designed to monitor the conduct or performance of employees”. The Federal Labour Court (BAG) interprets this broadly. An installation is designed for monitoring if it is objectively capable of collecting and recording conduct or performance data. The employer's subjective intention does not matter. Three decisions demonstrate how far-reaching this is: * **Facebook page (BAG, 13/12/2016, 1 ABR 7/15):** Even the visitor posting function, in which visitors could comment on employees, triggered codetermination. The employer had to deactivate it until the works council consented or the conciliation committee decided. * **Spreadsheet application (BAG, 23/10/2018, 1 ABN 36/18):** Standard software such as Excel is also covered if attendance and absence times of individual employees are recorded in it. There is no materiality threshold. * **Office 365 (BAG, 8/3/2022, 1 ABR 20/21):** Office software constitutes a monitoring system. Because it was administered centrally company-wide, the central works council (Gesamtbetriebsrat) had jurisdiction, not the local works council. For AI in HR software, this means: An AI assistant with usage logs, an evaluation of absenteeism, or an applicant assessment whose audit trail records who made which decision and when are routinely subject to codetermination. It may be different if employees merely use an AI tool via private accounts in a browser and the employer receives no data. The Hamburg Labour Court (16/1/2024, 24 BVGa 1/24) decided this in summary proceedings. Nothing can be inferred from this for AI integrated into corporate software. If no agreement is reached, the conciliation committee decides (§ 87 Abs. 2 BetrVG). ### § 90 BetrVG: Information as early as the planning stage The employer must inform the works council in good time and provide the required documents regarding the planning of “working methods and working processes, including the use of artificial intelligence”. Consultation must take place early enough for the works council's suggestions and concerns to be factored into the planning. This therefore means the time before the purchasing decision, not the system go-live. Anyone who fails to fulfil obligations under § 90 Abs. 1 or Abs. 2 Sentence 1, or fulfils them untruthfully, incompletely or belatedly, commits an administrative offence. The fine can be up to 10,000 euros (§ 121 BetrVG). ### § 95 Abs. 2a BetrVG: Selection guidelines involving AI Guidelines on staff selection for recruitments, transfers, regradings and dismissals require the consent of the works council. In establishments with more than 500 employees, the works council can even demand the establishment of such guidelines. Paragraph 2a clarifies that this also applies if AI is used in establishing the guidelines. Practically important: If an AI applicant screening system defines criteria and weightings according to which applications are ranked, these criteria can constitute a selection guideline. Likewise, a catalogue of criteria can constitute a general assessment principle pursuant to § 94 Abs. 2 BetrVG. This is our assessment; we have not found a decision from the highest court on AI criteria. Therefore, check whether every new version of the criteria requires consent. ### § 80 Abs. 3 BetrVG: Experts for AI Normally, the works council must justify why it needs an expert. With AI, this is different: If it has to assess the introduction or application of AI, “the engagement of an expert shall to that extent be deemed necessary”. A “closer agreement” with the employer concerning the specific individual, scope of work, and costs remains required. The costs of works council activities are borne by the employer (§ 40 Abs. 1 BetrVG). Both parties can also agree on a permanent AI expert. ### Art. 26 para. 7 AI Act: Information before deployment Employers deploying a high-risk AI system in the workplace must inform employee representatives and affected employees beforehand. AI for recruitment, selection, and performance evaluation falls under the high-risk areas according to Annex III No. 4. Pursuant to the AI Omnibus (Regulation (EU) 2026/1744), the obligation applies from 2 December 2027. It does not replace codetermination; it comes on top of it. Details are explained in our guide [AI Act in HR](/en/hr-software/eu-ai-act-hr). ### Data protection is integral A works agreement can serve as a legal basis for processing employee data (Art. 88 GDPR). However, it must comply with the general rules of the GDPR, and courts review this fully (CJEU, 19/12/2024, C-65/23). If the works council itself processes personal data, the employer remains the controller under data protection law (§ 79a BetrVG). ## Checklist: Roll-out of new software with the works council **Planning** 1. Inform the works council before vendor selection: objectives, affected processes, planned AI features (§ 90 BetrVG). 2. Clarify the responsible body: works council, central works council, or group works council. 3. Agree on a timeline with fixed consultation dates. **Documentation** 1. Functional specification and purpose of each AI feature. 2. Data fields, data sources, and interfaces. 3. Role and permission concept. 4. List of all evaluations and reports, logging, retention/erasure periods. 5. Data Protection Impact Assessment or its draft; for high-risk AI, additionally the provider's instructions for use. 6. Assessment criteria: examine whether § 94 or § 95 BetrVG applies. **Negotiation** 1. Agree on an expert pursuant to § 80 Abs. 3 BetrVG if requested by the works council. 2. Provide test access or a demo for the works council. 3. Conclude a works agreement, ideally as a framework with schedules per system. You can find a model structure in the guide [Works Agreement on AI](/en/hr-software/betriebsvereinbarung-ki). **Introduction and operation** 1. Inform employees; for high-risk AI from 2 Dec 2027 pursuant to Art. 26 para. 7 KI-VO, and applicants pursuant to Art. 26 para. 11 KI-VO. 2. Define the procedure for updates: When is the works council informed before new features are deployed? 3. Review criteria, logs, and evaluations jointly once a year. ## How the techport HR Suite supports you The [techport HR Suite](/en/hr-software) combines personnel administration, recruiting, AI applicant assessment, and corporate knowledge in one platform. For collaboration with the works council, it offers: * the [Works Council Assistant](/en/hr-software/betriebsrat-software) for researching 73 statutes and regulations as well as internal works agreements, with statutory citations and up to eight references per answer, * read-only access for the works council to approved assessment criteria, their versions, and applicant assessment logs, * versioned criteria: each approval is an immutable version, facilitating approval per version, * a clear division of roles in applicant assessment: the AI suggests, a human decides. The system never sends rejection letters automatically, * roles and permissions per module, a complete audit log, as well as instructions for use and an "Information for Applicants" template. Hosted on servers in Germany, optionally available as an on-premises installation at your premises. For the strategic contextualisation of AI in HR, see [AI in HR with Governance](/en/hr-beratung/strategie-und-planung/ki-im-hr). [Request a demo](/en/kontakt?thema=hr-suite) ## Frequently asked questions Does the works council have a codetermination right regarding AI? Yes, almost always. AI systems that process employee data are technical systems under § 87 Abs. 1 Nr. 6 BetrVG if they are objectively capable of monitoring conduct or performance. An intention to monitor is not required. In addition, there is the duty to inform under § 90 BetrVG and, in the case of selection criteria, consent under § 95 BetrVG. What is enforceable codetermination? Enforceable codetermination means that the employer may only implement a measure with the consent of the works council. If the two cannot agree, the conciliation committee makes a binding decision (§ 87 Abs. 2 BetrVG). For AI in HR software, this primarily concerns § 87 Abs. 1 Nr. 6 BetrVG. By contrast, information under § 90 BetrVG is an information and consultation right. Who pays for the works council's AI expert? The employer bears the costs, as the costs of works council activities are borne by the employer under § 40 Abs. 1 BetrVG. For AI, the expert is deemed necessary under § 80 Abs. 3 BetrVG. Nevertheless, the employer and works council must agree in advance on the person, scope of work, and fees. A permanent AI expert is possible. Does codetermination apply if employees use AI privately in a browser? Not necessarily. In 2024, the Hamburg Labour Court rejected a codetermination right because employees used an AI tool via private accounts and the employer received no data (24 BVGa 1/24). This was a first-instance summary proceeding. As soon as AI is integrated into company software and usage data is generated, § 87 Abs. 1 Nr. 6 BetrVG regularly applies. What happens if AI is introduced without the works council? The works council can demand that the employer cease its use until an agreement or a ruling by the conciliation committee is reached. The Federal Labour Court confirmed this in the Facebook decision (1 ABR 7/15). If the employer breaches its obligation to inform under § 90 BetrVG, an administrative fine of up to 10,000 euros may also be imposed (§ 121 BetrVG). What is the works council not allowed to do? The works council must not intervene in the management of the establishment through unilateral actions (§ 77 Abs. 1 BetrVG). It cannot, therefore, deactivate software itself or reconfigure it independently. However, it can assert its rights, demand an agreement, and, in the event of a dispute, appeal to the conciliation committee or the labour court. ## Sources Retrieved on 23/10/2026. * [§ 87 BetrVG, Mitbestimmungsrechte](https://www.gesetze-im-internet.de/betrvg/__87.html) * [§ 90 BetrVG, Unterrichtungs- und Beratungsrechte](https://www.gesetze-im-internet.de/betrvg/__90.html) * [§ 94 BetrVG und \[§ 95 BetrVG, Auswahlrichtlinien\](https://www.gesetze-im-internet.de/betrvg/\_\_95.html)](https://www.gesetze-im-internet.de/betrvg/__94.html) * [§ 80 BetrVG, \[§ 40 BetrVG\](https://www.gesetze-im-internet.de/betrvg/\_\_40.html), \[§ 77 BetrVG\](https://www.gesetze-im-internet.de/betrvg/\_\_77.html), \[§ 79a BetrVG\](https://www.gesetze-im-internet.de/betrvg/\_\_79a.html), \[§ 121 BetrVG\](https://www.gesetze-im-internet.de/betrvg/\_\_121.html)](https://www.gesetze-im-internet.de/betrvg/__80.html) * [Betriebsrätemodernisierungsgesetz vom 14.6.2021, BGBl. I S. 1762](https://www.bgbl.de/xaver/bgbl/start.xav?startbk=Bundesanzeiger_BGBl&jumpTo=bgbl121s1762.pdf) * [BAG, Beschluss vom 13.12.2016, 1 ABR 7/15](https://www.bundesarbeitsgericht.de/entscheidung/1-abr-7-15/) * [BAG, Beschluss vom 23.10.2018, 1 ABN 36/18](https://www.bundesarbeitsgericht.de/entscheidung/1-abn-36-18/) * [BAG, Beschluss vom 8.3.2022, 1 ABR 20/21](https://www.bundesarbeitsgericht.de/entscheidung/1-abr-20-21/) * [ArbG Hamburg, 16.1.2024, 24 BVGa 1/24 (Besprechung Heuking)](https://www.heuking.de/de/news-events/newsletter-fachbeitraege/artikel/kein-mitbestimmungsrecht-beim-einsatz-generativer-ki-ueber-privataccounts.html) * [EuGH, Urteil vom 19.12.2024, C-65/23](https://curia.europa.eu/juris/liste.jsf?language=de&num=C-65/23) * [Verordnung (EU) 2024/1689 (KI-Verordnung), Art. 26 und Anhang III](https://eur-lex.europa.eu/eli/reg/2024/1689/oj?locale=de) * [Verordnung (EU) 2026/1744 (KI-Omnibus)](https://eur-lex.europa.eu/eli/reg/2026/1744/oj?locale=de) ## Further reading [techport HR Suite HR Software HR software with personnel administration, recruiting, AI candidate evaluation and company knowledge on one platform. Hosted in Germany. Request a demo now. ](/en/hr-software)[techport HR Suite Digital Personnel File Digital personnel file with master data, contracts and documents, role-based permissions and access logging. Part of the techport HR Suite. Request a demo now. ](/en/hr-software/digitale-personalakte)[techport HR Suite Leave Management Leave management with requests, remaining leave, team calendar, and sickness notifications. Managers approve in the browser, HR keeps track. Request a demo. ](/en/hr-software/abwesenheitsverwaltung)[techport HR Suite Onboarding and Offboarding Onboarding software starting right from offer acceptance: personnel files and tasks for HR, IT, and managers are created automatically. Including offboarding. 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