BaFin stated that in the course of its examination it had not found any indications of oral or written agreements, or of any other concerted action regarding the joint acquisition of shares of Hochtief AG. BaFin had also not found that the two companies had made any arrangements to pool their voting rights.

Persons acting in concert are persons who – on the basis of an agreement or in another manner – coordinate their conduct with the offeror with respect to the acquisition of securities of the target company or the exercise of voting rights (section 2 (5) WpÜG). If Southeastern had been any such person acting in concert with ACS, then acquisitions of Hochtief shares by Southeastern would have had to be taken into account in determining the minimum consideration for the takeover offer by ACS to the shareholders of Hochtief AG (section 31 (1) and (4) of the WpÜG).

BaFin stated further that ACS, in submitting its amended offer document of 15 December 2010, had not obviously contravened any provisions under takeover law and that the amendment was therefore admissible. BaFin had not been able to establish beyond doubt that the original resolution to increase the share capital of ACS by 157 million shares did not cover the increase in the exchange ratio to nine instead of eight ACS shares for five Hochtief shares in each case. It had been presented with legal opinions from Spanish lawyers which had arrived at different results. Otherwise BaFin would have had to prohibit the increase of the offer by ACS (section 21 (3), section 15 (1) no.2 of the WpÜG), as the financing of the offer increase through an adequate capital increase resolution would obviously not have been guaranteed (section 13 of the WpÜG).