This article is for anyone who runs or advises a Spanish company with a works council or staff delegates and uses algorithms that decide, or help decide, about its staff: a recruitment tool that scores applications, a tool that allocates shifts, a system that measures productivity. Since the 2021 reform, Spain's Estatuto de los Trabajadores has given workers' representatives a specific right over those systems, and it does not wait for any AI Act date.
What the Article says
Article 64.4 opens by giving the right to the works council, to be exercised as often as each case requires. Its point (d) gives the council the right to be informed by the company of the parameters, rules and instructions on which the algorithms or artificial intelligence systems are based that affect decision-making which may influence working conditions, access to and retention of employment, including profiling.
It has three elements. Algorithms or AI systems: not only AI in the strict sense, but also a rules-based algorithm. That affect decision-making: they do not have to decide on their own. That may influence working conditions, access to and retention of employment: shifts, variable pay, promotions, dismissals and also hiring, because access to employment is on the list.
In a small company, the right is not lost for lack of a works council: Article 62.2 gives staff delegates the same powers as works councils.
What "parameters, rules and instructions" means in an SME
Three examples.
A recruitment tool that ranks applications. What the council can ask for: which data the system takes (the CV, a test, a recorded interview), which criteria it weighs and, if known, with what weight, what it produces (a score, a ranking, a rejection), which threshold is applied and who reviews the result before deciding. It is not the source code: it is the logic through which the system influences the decision.
A tool that allocates shifts. Which data it uses (availability, seniority, performance), which priority rules it applies and what it does when two people ask for the same thing.
A system that measures productivity and feeds variable pay. Which activity it records, how it turns it into a score and how much that score weighs in variable pay or the annual review.
And what falls outside: an algorithm that does not affect decisions about staff, such as an optimiser that only plans deliveries or a spam filter, is outside point (d). The same optimiser, if it assigns routes and loads to each driver with an effect on their working conditions, may fall within it. So the useful question is not whether the tool is AI, but whether any decision about a member of staff goes through it.
Much of that information sits with the vendor, not the company. That is why asking about the system's logic is one of the questions worth putting before contracting it, and an AI recruitment tool is the clearest case.
And the form matters. Article 64.1 defines information as the transmission of data by the employer to the works council so that it knows about a given matter and can examine it, and Article 64.6 requires it to be given at a time, in a manner and with content that allow the representatives to examine it properly. A sheet with the product's name does not do it.
The LOPDGDD, alongside
Article 64.4(d) does not stand alone. If the system runs on the company's digital devices, Article 87.3 LOPDGDD requires criteria for their use to be set with the participation of workers' representatives, and Article 90 requires information before geolocating. They are different rights, which add up: we explain them in Articles 87 to 91 LOPDGDD.
What AI Act Article 26(7) will add
For high-risk systems, the AI Act will add another information duty:
"7. Before putting into service or using a high-risk AI system at the workplace, deployers who are employers shall inform workers’ representatives and the affected workers that they will be subject to the use of the high-risk AI system."
It looks like Article 64.4(d), but it is not the same:
| Article 64.4(d), Estatuto de los Trabajadores | Article 26(7), AI Act | |
|---|---|---|
| Which systems | Algorithms or AI systems affecting decisions on working conditions or access to and retention of employment | High-risk AI systems used at the workplace, such as those in Annex III, point 4 |
| Who is informed | The works council or the staff delegates | Workers' representatives and the affected workers |
| About what | The parameters, rules and instructions they are based on | That they will be subject to the use of the system |
| When | As often as each case requires | Before it is put into service or used |
| From when | In force | From 2 December 2027 for Annex III high-risk systems and from 2 August 2028 for Annex I systems |
Article 26 applies from 2 December 2027 for Annex III high-risk systems and from 2 August 2028 for Annex I systems; it does not reach Annex I, Section B products. For a recruitment or performance-evaluation tool, which are in Annex III, the date is December 2027: you can see it on the calendar, and why it is not August 2026 is explained in another article.
The AI Act does not replace the Estatuto de los Trabajadores: Article 26(7) itself says the information is to be provided, where applicable, in accordance with the rules and procedures of Union and national law. Article 64.4(d) will remain the channel for the detailed information, and Article 26(7) will add the information to the affected workers.
Where a company's high-risk systems sit is explained in high risk is not in your business, it is in HR; and the case of recruitment agencies, which use the system on candidates who are not their workers, in when HR is the business.
What document proves you informed
No law sets a format. What can be shown is what is written down:
- A communication to the works council or staff delegates, dated, listing the systems concerned.
- For each system, its parameters, rules and instructions, in language that allows them to be examined.
- The representatives' acknowledgement of receipt.
- An update whenever the system changes, because a change of model or criterion changes what was reported.
Once Article 26(7) applies, the same file will be the basis for informing the affected workers before a high-risk system is used.
Related reading: since 5 October 2026, Spain's RD 723/2026 adds individual written information for each worker. From 5 October, your staff have the right to know which systems decide about their work.
Content in accordance with Articles 62.2 and 64 of Spain's Estatuto de los Trabajadores, Articles 87 and 90 of Spain's Ley Orgánica 3/2018, and Article 26 and Annex III of Regulation (EU) 2024/1689, with the Article 113 dates as amended by Regulation (EU) 2026/1744.
This article is for informational purposes only and does not constitute legal advice.