Introducing a video tool in Germany: § 87 BetrVG, a vendor data table and model clauses
Steffen Rosenögger, Founder of CapmePublished November 11, 2026
Works council in Germany: a video tool that shows who watched what needs its agreement under § 87 BetrVG. Vendor data table, model clauses, § 90 email.
In short
- Under § 87(1) no. 6 BetrVG, a video tool objectively suited to monitoring conduct or performance needs the works council's agreement before it goes live.
- Run a pilot with one team, an end date and settings agreed in writing.
If your video tool can show an organiser that 2 of 3 people have watched, in Germany the works council decides with you whether it goes live.
The example is Capme Meetings, a platform for the meetings that can run as recordings; the GDPR side is in the guide to secure video messaging and the GDPR. This is not legal advice.
What does section 87(1) no. 6 of the Works Constitution Act say about video tools?
Under section 87(1) no. 6 of the Works Constitution Act (BetrVG), a video tool that can show who watched which video needs the works council's agreement before it goes live. The provision gives the works council co-determination over the “introduction and use of technical devices designed to monitor the conduct or performance of employees” (translated), unless a statute or collective agreement already settles the matter. Co-determination (Mitbestimmung) means the works council decides the matter jointly with the employer, who cannot act alone.
The Federal Labour Court reads “designed to” objectively. In 1 ABR 7/15 of 13 December 2016, the visitor-post function of an employer's Facebook page was enough, because visitors could post about staff conduct and performance. In 1 ABR 16/23 of 16 July 2024, a headset system supervisors could listen in on was enough, though nothing was recorded. An async video tool keeps every recording and who watched it.
Without agreement, the conciliation board decides (§ 87(2) BetrVG), and either side can call it (§ 76(5)). The board (Einigungsstelle) is a § 76 panel of both sides with an impartial chair; its ruling replaces the agreement.
This needs an elected works council, possible under § 1 BetrVG with, as a rule, at least five permanent voting employees, three of them eligible. Without one, Art. 13 GDPR still requires telling staff what the tool stores.
What does an async video tool store about each person, and who sees it?
Ask every vendor on your shortlist to fill in three columns per kind of data: what is stored about whom, who sees it, where and how long. What admins see shows Capme's screens.
| What is stored, about whom | Who sees it | Where, how long |
|---|---|---|
| Each member's email, name, job title, role, invitation and first sign-in dates | Admins; people in a shared meeting see name or email. No last-active time. | Capme's database |
| Speaker's recordings: face, voice, screen shown | Speaker, audience, admins; public link holders if links are on | EU hosting, deleted after 365 days at most unless kept; or the company's own bucket on Business and Enterprise |
| Per speaker: topic, invitation opened, video received | Organiser and admins | Capme's database |
| Each viewer's progress per topic | Per person (default): organiser and admins. Totals only: counts, no names. Everyone sees their own. | Capme's database |
| Applause per topic, by person | Speaker gets a notification naming who applauded, also under Totals only; everyone sees the count | Capme's database |
| Sign-ins and audit log entries (who changed what), with time, IP address, browser | Sign-ins: nobody in the workspace. Audit log: CSV on Business and Enterprise, otherwise on request | 365 days; audit log not editable |
When do you have to tell the works council about a new tool?
The works council has to hear about a new tool while you are still choosing it. § 90 BetrVG requires the employer to inform it in good time, with the documents, about planned technical installations and work procedures, naming AI expressly since 2021, and to consult early enough for its proposals to change the plan. A works council that first sees a signed contract starts the § 87 talks with a grievance.
Can a works agreement be the legal basis for employee data in a video tool?
A works agreement can be the legal basis for employee data in a video tool, within limits the Court of Justice has tightened. A works agreement (Betriebsvereinbarung) is a written agreement between employer and works council that applies directly and bindingly to the establishment's employees under § 77(4) BetrVG. Article 88 GDPR lets collective agreements set more specific rules for employee data, and under paragraph 2 these “shall include suitable and specific measures to safeguard the data subject's human dignity, legitimate interests and fundamental rights”. § 26(4) BDSG allows processing on that basis if Article 88(2) is observed.
In C-65/23 of 19 December 2024, the Court of Justice held that a works agreement must also meet Articles 5, 6(1) and 9 GDPR, and that national courts review it in full, necessity included. So collect only what the written purpose needs.
When is per-person tracking, or the video tool itself, the wrong choice?
Per-person watch progress is the wrong choice when the organiser only needs to know whether an update landed; the video tool itself is wrong when a topic needs debate or the works council has not agreed.
| Situation | Better choice | Why |
|---|---|---|
| The works council has not agreed yet | No live tool; at most a test workspace with sample content | § 87 applies before go-live |
| An audience of three or four people | Totals only plus a ban on drawing conclusions, or a short live round | “2 of 3 have watched everything” all but names the third person |
| Proof that each person got a mandatory instruction | A training system with acknowledgement | 75 % played counts as watched; that proves no understanding |
| The agreement must exclude every name, even who owes a recording | A tool without named users; Capme does not fit | Capme names speakers under either setting |
| The topic needs a decision or a debate | A live meeting in Teams or Zoom | Capme has no calls and no comments |
| Recordings should be transcribed | An AI notetaker, with an expert under § 80(3) BetrVG | Capme does not transcribe or analyse recordings |
What should the works agreement say about watch progress and evaluation?
The works agreement should tie every point where the tool shows data about a person to a purpose and a checkable setting.
We think totals only belongs in every first agreement, because an organiser rarely needs names to see whether an update landed, and widening a setting later is easier than taking back data already collected. The agreement should also fix the retention window and who is admin, since admins see what organisers see.
Since June 2021, § 80(3) sentence 2 BetrVG treats an expert as necessary where the works council has to assess AI. In our reading it does not reach a tool that neither transcribes nor analyses recordings; the general rule on experts still applies. The comparison of AI notetakers and async meetings shows where the line runs.
What else does the works council ask before it signs?
Which works council negotiates if the tool runs across several sites?
Often the central works council (Gesamtbetriebsrat). In 1 ABR 16/23 the Federal Labour Court held it competent for a centrally run headset system, because the system needed one rule for the whole company.
Do you need to renegotiate when the vendor adds a feature?
Yes, if the feature changes what the tool records or shows about people, because § 87 covers use as well as introduction. Write into the agreement that such changes go to the works council before you switch them on.
Does the works agreement cover external viewers?
No. It binds the establishment's employees, and not senior executives (§ 5(3) BetrVG). For them, and for freelancers or customers on an audience list, the information duties of Art. 13 GDPR apply directly.
How do you roll out a video tool with the works council, pilot included?
A video tool rolls out fastest when the works council sees what it stores before any pilot, and the pilot stays inside a written agreement.
- Send the § 90 email while you are still choosing, with each vendor's data table attached, and budget the talks in the business case.
- Walk through the table with the works council and the data protection officer in a test workspace.
- Agree the pilot in writing on the settings below, with one team and an end date. The Workday case (C-65/23) began with a pilot under a provisional works agreement, so keep the pilot inside what was signed.
The pilot in Capme
An admin sets this up before anyone records.
- Under Settings, the admin sets Watch progress to Totals only and leaves Public links Off: “Nothing in this workspace opens without a sign-in.”
- On Business or Enterprise, the admin shortens the retention window to the pilot's length before the first take; a new window only covers later recordings.
- With topics, deadline and audience set, the meeting page reads “8 of 12 have watched everything, 3 have started”, with no names. If the organiser switched on the watch reminder, it still reaches anyone who has not finished.
- Names remain in each speaker's invitation status and in the Waiting on list of up to ten speakers who owe a recording; clause 2 covers that list.
After the pilot
Review the pilot with the works council, with Capme's works council document from the Trust Center: did organisers miss names? Then sign the works agreement, set the workspace to match and tell employees what it says before the first company-wide invitation.
One question stays open: who may switch Totals only back to per person. In Capme any admin can, and the audit log records it. Clause 2 requires the works council's consent, so also agree who reads that log entry.