When artificial intelligence comes up in a German plant, the discussion almost always goes to Section 87 (1) no. 6 BetrVG, the technical device capable of monitoring. That is correct and still too narrow. The Works Constitution Act names artificial intelligence expressly in three places, and one of them settles a question that otherwise takes weeks to negotiate in a project.
The sentence
Section 80 (3) BetrVG reads in full:
„Der Betriebsrat kann bei der Durchführung seiner Aufgaben nach näherer Vereinbarung mit dem Arbeitgeber Sachverständige hinzuziehen, soweit dies zur ordnungsgemäßen Erfüllung seiner Aufgaben erforderlich ist. Muss der Betriebsrat zur Durchführung seiner Aufgaben die Einführung oder Anwendung von Künstlicher Intelligenz beurteilen, gilt insoweit die Hinzuziehung eines Sachverständigen als erforderlich. Gleiches gilt, wenn sich Arbeitgeber und Betriebsrat auf einen ständigen Sachverständigen in Angelegenheiten nach Satz 2 einigen."
In English: the works council may bring in experts, by closer agreement with the employer, in so far as this is necessary for the proper performance of its duties. Where the works council has to assess the introduction or application of artificial intelligence in order to perform its duties, bringing in an expert counts as necessary for that purpose. The same applies where employer and works council agree on a standing expert for matters under sentence 2.
Sentence 1 is the general rule, and it contains the word everything turns on in practice: necessary. Whether an expert is necessary is the usual point of dispute. The employer bears the cost, so the employer tests whether it really cannot be done without one, and the works council has to explain why its own expertise does not suffice.
Sentence 2 takes that dispute out of the procedure for one single subject. Where the works council has to assess the introduction or application of artificial intelligence, bringing in an expert counts as necessary. Not „may count as necessary", not „is normally necessary". The statute establishes the necessity.
What is still negotiable afterwards, and what is not
The distinction matters more than it sounds, because sentence 2 does not remove the reference to the „closer agreement" in sentence 1. So the person, the scope of the engagement and the fee remain negotiable. What is no longer negotiable is whether.
For project planning that means a meeting in which the employer contests necessity is, for this subject, a lost meeting. Scheduling it anyway pushes the start of the assessment back by exactly the time the dispute took.
When the sentence applies
Two words settle it, and both are wider than they look on a first reading.
„Beurteilen", to assess, attaches to the duties of the works council, not to any classification of the system. There is no risk class here, no threshold and no reference to the AI Act. As soon as a participation right is engaged at all and the body has to evaluate an AI system for that purpose, the condition is met.
„Einführung oder Anwendung", introduction or application, covers both ends. Introduction is the selection, meaning the period in which the decision is still open. Application is live operation. So the sentence does not wait until a system is in place; it applies while the system is being examined. Whoever is choosing between three vendors and involves the works council in that choice has the expert inside that procedure, not after it.
Sentence 3 adds a possibility that is rarely used: if both sides agree on a standing expert for these matters, the same applies. A one off opinion can therefore become a permanent role, where both sides want that.
The other two places
For completeness, and because they set the timeframe in which sentence 2 operates:
Section 90 (1) no. 3 BetrVG obliges the employer to inform the works council about the planning of „Arbeitsverfahren und Arbeitsabläufen einschließlich des Einsatzes von Künstlicher Intelligenz", work processes and workflows including the use of artificial intelligence, in good time and with the necessary documents. That is an information duty at the planning stage, so it comes before anything Section 97 (2) BetrVG triggers, and before putting into service in the sense of the AI Act. Section 90 (2) adds that the intended measures must be discussed early enough for the works council's suggestions and concerns to still be taken into account in the planning.
Section 95 (2a) BetrVG states that subsections 1 and 2 also apply where artificial intelligence is used in drawing up the selection guidelines under those subsections. Selection guidelines therefore still require consent, whether a person or a model drafted them.
Together that gives an order: inform and consult under Section 90, assess with an expert under Section 80 (3) sentence 2, and only then the questions raised by Section 87 (1) no. 6 and Section 94 BetrVG.
What this means for selecting a system
Anyone introducing a skills or qualification system should assume that an external expert will read it, that the expert will be paid for it, and that the engagement no longer depends on whether the employer considers it necessary. From that follows a plain requirement on the system: it has to be assessable by someone who did not build it.
Three questions usually decide that. At which level does the system calculate, the role or the person? How is a score produced, and can the weighting be inspected and recalculated? And what mapping between the in house job label and a classification standard sits underneath?
QualiShift answers the second question by disclosing the weighting of the criteria in the Company Workspace and allowing it to be changed, and the third through its orientation towards ESCO. That is not a promise that an expert will be satisfied. It is the observation that a score nobody can recalculate is worth nothing in this procedure.
What this piece does not do
This piece is not legal advice. It sets out the wording of the three provisions and describes what follows from them for the sequence of a selection procedure. Whether a participation right is engaged in a specific case, and how wide an expert engagement should be, belongs with the people running the procedure in house.
Sources
- Section 80 (3) Works Constitution Act, general duties, bringing in experts.
- Section 90 (1) and (2) Works Constitution Act, information and consultation rights.
- Section 95 (2a) Works Constitution Act, selection guidelines.