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New operating system at work? No right of co-determination for employees!

An interesting decision from an area that is not really considered a major IT issue was announced today by the Berlin Administrative Court.

The latter ruled that the introduction and application of a new program version (in this case Windows 10 and Office 2016) does not constitute an infringement under Section 85 para. 1 No. 13 b) PersVG Berlin is a measure subject to co-determination which is intended to monitor the behavior or performance of the employees.

In addition, the court ruled that for the objective possibility of monitoring data access on the PC or on the server beyond that there must be concrete evidence that justifies the assumption of the risk of possible surveillance.

The introduction of Windows 10, combined with the switch to Office 2016, therefore did not violate the right of co-determination of the staff council even without its involvement. Interesting also the following statement in the judgment:

It is added that these are only new programs of already existing and used PCs. According to the above-mentioned case law of the Federal Administrative Court, each subsequent change in the operating system or in the programs is again subject to co-determination as a new case of application. In the opinion of the Board, however, this does not mean that a new program or a new version of a program alone can trigger a new instance of codetermination if the previously used application has been used without objection for years.


Marian Härtel

Marian Härtel

Marian Härtel is a lawyer and entrepreneur specializing in copyright law, competition law and IT/IP law, with a focus on games, esports, media and blockchain.

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