If a German company with a works council (Betriebsrat) introduces an AI system, the council almost always has a say: it must be informed in good time, and as soon as the system can assess employees' behaviour or performance, it needs the council's agreement.
With AI and the works council, the question is therefore less whether you involve the council and more how well prepared you are. If you bring data flows, logs and a draft works agreement, you'll finish sooner than with reassurances.
- The works council must be informed about planned AI systems in good time, and as soon as a system can assess employees' behaviour or performance, introducing it needs the council's agreement.
- It's enough that the system is objectively suitable for that, for example through chat histories with names or usage statistics per person.
- You reach agreement fastest with disclosed data flows, storage that can be switched off and a draft works agreement.
When does the works council have a say on AI?
The key provision is section 87(1) no. 6 of the Works Constitution Act (BetrVG). The works council co-determines technical systems that can monitor employees' behaviour or performance. According to settled case law of the Federal Labour Court, it doesn't matter whether you intend to. It's enough that the system is objectively suitable.
With an AI assistant that happens quickly. Chat histories with names, usage statistics per person, ratings of answers and logs of who asked what, when: all of this can allow conclusions about how people work and perform, even if nobody draws them. The graphic above shows this with an example.
Since the Works Council Modernisation Act of 2021, the law names artificial intelligence explicitly in several places. The rights at a glance:
The works council's rights on AI under the BetrVG
Inform before it's decided.
The employer must inform the works council in good time about planned working procedures and processes, explicitly including the use of AI (section 90(1) no. 3), and discuss the effects on employees. In good time means: while the plan can still change, not after the contract is signed.
Agreement needed if assessment is possible.
If the system can assess behaviour or performance, its introduction needs the works council's agreement. Without agreement, a conciliation committee decides. This is where most AI projects get delayed.
Rules for everyone and strain.
Binding rules of conduct for everyone, such as banning certain services, can concern workplace order (no. 1). If AI changes work in ways that create new psychological strain, health protection can be affected (no. 7).
Deemed necessary for AI.
If the works council has to assess the introduction or use of AI, bringing in an expert is deemed necessary. The employer bears the cost; the details are agreed.
Also when AI helps draft guidelines.
Guidelines for hiring, transfers or dismissals need the works council's agreement, also when AI is used to draw them up.
If you introduce a system that needs co-determination without the council's agreement, the council can demand that you stop using it, if necessary in summary proceedings at the labour court. A project that is already running then stands still. That's another reason to start early.
In shortYou must always inform. The works council must agree as soon as the system can assess performance or behaviour: suitability is enough.
What the Hamburg AI decision means, and what it doesn't
In January 2024 the Hamburg labour court decided that the works council didn't have to co-determine when an employer allowed staff to use generative AI services in the browser. Employees used their own accounts, and the employer had no access to the data. No access, no monitoring.
For an AI system your company introduces and runs itself, exactly that reasoning doesn't apply. You then have access to histories and logs, and co-determination under section 87(1) no. 6 usually applies. The decision was a single ruling in summary proceedings; don't rely on it for your own system.
There's also a practical point: private accounts settle the co-determination question but create another one. What staff type there leaves your company without a contract and without control. That's why almost every company needs an AI policy that sets out which services are allowed, and the policy itself is a topic for the works council (section 87(1) no. 1).
In shortPrivate accounts without employer access: no co-determination. Your own system: usually yes.
What the EU AI Act adds
Alongside the Works Constitution Act, three duties from the EU AI Act touch the conversation with the works council. The Digital Omnibus, in force since July 2026, changed two of them:
- AI literacy (Art. 4). Since February 2025, companies using AI must take measures to support their staff's AI literacy. The law doesn't require an exam or a certificate. In practice, a usage policy, a short training and a named contact are enough.
- Transparency (Art. 50). Since August 2026, people must be able to tell they're talking to an AI.
- High-risk AI at work (Art. 26(7)). If you use a high-risk system at the workplace, such as for candidate selection, you must inform worker representatives and staff beforehand. After the Omnibus, this duty applies from 2 December 2027. A knowledge assistant for internal documents is usually not a high-risk system.
Check how your system is classified with the risk class check. All deadlines are on our EU AI Act page.
In shortSupport AI literacy without a certificate duty, label AI since August 2026, high-risk at work from December 2027.
Why an AI assistant quickly counts as monitoring
Many features administrators value are, from the works council's view, monitoring technology. That includes useful ones. You need an audit log for security and evidence, for instance. But it also shows who did what, when, and so it is suitable for assessing behaviour.
The answer isn't to drop such features but to fix their purpose: the audit log serves security and incident investigation, not performance control. That's exactly what belongs in the works agreement.
Test every feature with two questions. Does it store anything about a specific person? And who can see it? Switch off what you don't need. What you do need gets a fixed purpose, a retention period and a small circle of people allowed to see it.
In shortThe feature isn't the problem, an open purpose is. Fix what logs are for.
What goes into a works agreement on AI?
A works agreement on AI sets out what the system is used for, and what not. Cover these nine points in your draft:
Every point ticked. Well prepared.
"Changes" is the point most often forgotten. AI systems keep getting new features and models. Set out which changes trigger renewed involvement and which don't, or the discussion starts over with every update.
In parallel, check whether you need a data protection impact assessment. With AI that touches employee data that's often the case, and both documents answer many of the same questions. Our DPIA guide shows how.
In shortNine points cover the works agreement: don't forget the rule for changes.
How do you prepare the conversation with the works council?
- Inform earlyas soon as the project is planned, under section 90
- Show data flowswhere questions and documents go, and where not
- Disclose logswhat is stored, who sees it, for how long
- Table a drafta works agreement that rules out monitoring
- Pilot with reviewone team, clear sources, a joint look back
Bring evidence, not reassurances. A screen showing that chat history storage is switched off convinces more than a sentence in a datasheet. And plan for the works council's expert from the start, with time and budget.
Whether you use RAGSuite Engine or run RAGSuite on your own servers: you set the options the works council asks about, and you can show them in the system.
- Storage can be switched off. For chat and search, storing histories can be turned off, in every plan.
- Retention periods. You decide how long data stays.
- Roles and teams. Admins and members see different things.
- Audit log. The last 15 days in the Community Edition, complete with filters and export in RAGSuite Engine and Enterprise. Who may see it is set in the works agreement.
- AI notice in the widget. Users can tell they're talking to an AI.
- Data path. On your own servers, RAGSuite sends no usage data to us. In RAGSuite Engine we process the data as your processor under your data processing agreement.
Read more about data protection duties on our page AI data protection. The features in detail are on Administration & security and in the Trust Center.
This is general information, not legal advice. Involve your works council and legal counsel on the details.
In shortInform early, show evidence, table a draft, review the pilot together.
Write the rules down before you talk to the works council, with the free AI policy tool or in a call with Stefan.
Frequently asked questions
Does the works council have to agree to introducing AI?
If the AI system can assess employees' behaviour or performance, yes (section 87(1) no. 6 BetrVG). Objective suitability is enough, for example chat histories with names or usage statistics. Separately, under section 90 you must inform the council about the planned AI in good time and discuss its effects.
Does the works council co-determine if staff use AI services privately?
According to a Hamburg labour court decision of January 2024, not if employees use their own accounts and the employer has no access to the data. That doesn't apply to a system your company introduces and runs itself. You then have access to histories, and co-determination usually applies.
May the works council bring in an expert?
Yes. If the works council has to assess the introduction or use of AI, bringing in an expert is deemed necessary under section 80(3) BetrVG. The employer bears the cost; the details are agreed. Plan time and budget for it rather than treating it as a delay to your project.
What goes into a works agreement on AI?
Purpose and scope, the systems used, the data ingested, logging and retention, a ban on performance and behaviour monitoring, access rights to logs, the procedure for changes, training under Art. 4 of the EU AI Act and a date for a joint review. This is general information, not legal advice.
What happens if we introduce AI without the works council's agreement?
If the system needs co-determination, the works council can demand that you stop using it, if necessary through an interim injunction at the labour court. A running project then stands still, and trust suffers. The faster route is the reverse: inform early, show the data flows and table a draft works agreement.
Sources
- BetrVG § 87: Mitbestimmungsrechte: monitoring, conduct, health
- BetrVG § 90: Unterrichtungs- und Beratungsrechte: AI named explicitly
- BetrVG § 80: Allgemeine Aufgaben (Abs. 3 Sachverständige): expert for AI
- BAG, Beschluss vom 13.12.2016, 1 ABR 7/15: objective suitability for monitoring is enough
- ArbG Hamburg, Beschluss vom 16.01.2024, 24 BVGa 1/24 (Besprechung activeMind.legal): AI services via private accounts
- EU AI Act, Reg. (EU) 2024/1689 as amended by Reg. (EU) 2026/1744: Art. 4, 26, 50
Stefan works with customers in public administration and regulated industries. He writes about the GDPR, the EU AI Act, works councils and tenders.